Defences - Short Answers

Question 1

Define the term justified

Answer 1

In relation to any person, “justified” means that the person is not guilty of an offence and is not liable civilly

Question 2

What is R v Forest and Forest

Answer 2

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the Victim’s age.

Question 3

What is R v Clancy

Answer 3

The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother… Production of the birth certificate,if available, may have added to the evidence but was not essential.

Question 4

What happens where 10-13 year olds are charged with Murder?

Answer 4

10 to 13 year olds charged with Murder or manslaughter are usually dealt with under the youth justice provisions of the CYPF Act. However charges of murder or manslaughter will be heard in the High Court following the first appearance in the Court in which the charging document was filed.

Question 5

What does protected from criminal responsibility mean?

Answer 5

Protected form criminal responsibility means not guilty of an offence but civil liability may still arise

Question 6

What type of defence does a child under 10 have?

Answer 6

A child under 10 years has an absolute defence

Question 7

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

Answer 7

On the balance of probabilities

Question 8

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 8

A question of Law

Question 9

What are the two types of automatism?

Answer 9

The two types of Automatism are sane and insane

Question 10

How is automatism described

Answer 10

Automatism is best described as a state of total blackout, during which a person is not conscious of their action and not in control of them.

Question 11

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

Answer 11

The result of a trial where the defendant is found to have been in a state of automatism from intoxication is complete acquittal

Question 12

What is R v Cottle? - Burden of Proof

Answer 12

R v Cottle
As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance os probabilities without necessarily excluding all reasonable doubt

Question 13

What are M’Naghten’s rules

Answer 13

The M’Nahhten’s rules (or test) is frequently used to establish whether or to a defendant is insane. It is based on the person’s ability to think rationally, so that is a person is insane they were acting under such a defect of reason from a disease of the mind that they did not know:

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

Question 14

What is R v Codere

Answer 14

The nature an quality of the act means the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the act. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act

Question 15

What is R v Cottle - Automatism

Answer 15

Doing something without knowledge of it and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

Question 16

What is R v Lipman

Answer 16

Where automatism is brought about by a voluntary intake of alcohol or drugs the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

Question 17

What are the two types of Automatism

Answer 17

Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind.

Hence it is necessary to distinguish between:
Sane Automatism - the result of somnambulism (sleepwalking), a blow to the head or effects of drugs

Insane Automatism - The result of mental disease

Question 18

What is the general rule with respect to the defence of intoxication

Answer 18

The general rule has been that intoxication may be a defence to the commission of an offence:

• Where the intoxication causes a disease of the mind so as to bring s23 (Insanity) of the Crimes Act 1961 into effect
• If intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
• Where the intoxication causes a state of automatism (Complete Acquittal)

Question 19

What is R v Kamipeli

Answer 19

It does not have to be shown that the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.

Question 20

What are the chances of the Defence of intoxication to succeed in NZ?

Answer 20

In New Zealand, intoxication caused by alcohol or drugs may be a defence to all charges where their effect raises a reasonable doubt as to whether the offender had formed the requisite intent for the offence. With regard to strict liability offences (like EBA) the defence of intoxication is unlikely to be very successful because the intent element required by the offence is so simple or basic that the person is not able to establish they had no intent to commit the offence.

Question 21

Explain the provisions relating to ignorance of law.

Answer 21

This ruling applies whether the offender is from this country or from overseas.

Section 25 CA ‘61 Ignorance of Law
The fact that an offender is ignorant of law is not an excuse for any offence committed by him.

Question 22

Describe entrapment

Answer 22

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process

R v Liu

However, if the entrapment is unfair, it may result in the court excluding the evidence, using its inherent jurisdiction to prevent an abuse of process “By the avoidance of unfairness”

Question 23

Describe the provisions relating to self defence - Degree of force

Answer 23

Subjective test
Once the accused has decided that use of force was required (a subjective view of the circumstances as the accused believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used

The degree of force permitted is tested initially under the following subjective criteria:

• What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief).
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?

Question 24

What is the definition of an alibi

Answer 24

An alibi is the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere

Question 25

Describe Notice of Alibi

Answer 25

Section 22 CDA ‘08

(1) If a Defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi
(2) The notice given under subsection (1) must be given within 10 working days after the defendant is given notice under section 20

Section 20 requires the Court or Registrar to give the Defendant written notice of the requirements of Section 22 and 23

• If the Defendant pleads not guilty
• If the Defendant is a child or young person, when they make their first appearance in the Youth Court.

Question 26

What just the Defendant do if they wish to call an expert witness?

Answer 26

If the Defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor:
- Any brief of evidence to be given or any report provided by that witness, or
- If that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided
This information must be disclosed at least 10 working days before the date fixed for the Defendant’s trial, or within any further time that the court may allow (s23(1))

Question 27

Define Insanity

Answer 27

Section 23 CA ‘61

(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.

(2) No person shall be convicted of an offence by reason of an act done or omitted by him 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; or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Question 28

Define the five guidelines with respect to Consent

Answer 28

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 in a prize fight or other exhibition
   calculated 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.