Homicide 4

Question 1

In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:

Answer 1

 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 2

Defendants sometimes defend their actions by saying that they did not know that what they were doing was wrong. However, s25 of the Crimes Act 1961 states

Answer 2

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

Question 3

Legislation Ignorance of law

Answer 3

25 Ignorance of law

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

Question 4

Child - Ignorance of law

Answer 4

Where a child does not know their act was contrary to law, they will not be liable for any offence (s22 Crimes Act 1961).

Question 5

M’Naghten’s test is based on the rationality of the defendant and depends on whether the person was:

Answer 5

 suffering from a disease of the mind that they did not know
 aware of the nature and quality of their actions
 aware that their actions were wrong.

Question 6

Automatism is a state

Answer 6

of total blackout when a person is not conscious of,

nor in control of, their actions

Question 7

A defence of automatism may depend on whether

Answer 7

the state of automatism is involuntary or self-induced and whether intent is present.

Question 8

What does “protected from criminal responsibility” mean?

Answer 8

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

Question 9

What type of defence does a child under 10 years have?

Answer 9

A child under 10 years has an absolute defence

Question 10

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

Answer 10

On the balance of probabilities

Question 11

Is the term “disease of the mind’ a question of Fact for the jury to decide or a question of Law for the judge to decide?..

Answer 11

A question of law

Question 12

What are the two types of automatism

Answer 12

The two types of automatism are sane and insane.

Question 13

How is automatism best described?

Answer 13

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

Question 14

Compulsion or duress is the act of

Answer 14

compelling a person to do something against their will.

Question 15

Section 24 of the Crimes Act 1961 provides the defence of compulsion:

Answer 15

24 Compulsion
(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

Question 16

the New Zealand Court of Appeal made it clear that, where the police overstepped the line between proper detection and improper inducement of crime, the

Answer 16

discretion to exclude the police officer’s evidence should be exercised.

Question 17

Legislation The justification for using force in defence of oneself and other people is set out in s48 of the Crimes Act 1961:

Answer 17

48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 18

Degree of force used

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

Answer 18

 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 19

Alibi Definition

Answer 19

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

Question 20

Under s22 of the Criminal Disclosure Act 2008, the defendant must provide the prosecutor with the particulars of any alibi witness they intend to use in
court. Written notice of an alibi is to be given by the defendant

Answer 20

within 10 working days after the defendant is given notice under section 20.

Question 21

Consent defined

Answer 21

‘Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another
R v Cox 7/11/96,
Consent must be “full, voluntary, free and informed … freely and voluntarily given
by a person in a position to form a rational judgment.”

Question 22

Many acts that are harmless and lawful in normal circumstances can become unlawful if they are done without the consent of the person who will be affected by them. For example, if you kiss someone with their consent it is an innocent act of affection, but if you kiss someone without their consent it can be seen as an assault. Consequently, defining assault can be complex. The following are a set of guidelines to consent regarding assault.

Answer 22

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.

Question 23

What is compulsion?

Answer 23

Compulsion is the act of compelling a person to do something against their will

Question 24

In relation to compulsion, what does “immediate” mean?

Answer 24

In relation to compulsion, “immediate” means at the scene from a person present at the time

Question 25

Who decides whether there is evidence of self-defence

Answer 25

Evidence of self-defence is decided by the judge

Question 26

What does “alibi” mean?

Answer 26

Alibi means being elsewhere at the material time.

Question 27

What people are considered unable to give consent?

Answer 27

People are considered to be unable to give their consent if they are:
 a child
 unable to rationally understand the implications of their defence
 subject to force, threats of force or fraud.

Question 28

What actions do not allow for a defence of consent?

Answer 28

You cannot use the defence of consent in cases involving:
 aiding suicide
 criminal actions
 injury likely to cause death
 bodily harm likely to cause a breach of the peace
 indecency offences
 the placing of someone in a situation where they are at risk of death or bodily harm.