Homicide and Law Defences Flashcards
Must Know Case Law
(Part 1)
- Murray Wright Ltd
- R v Tomars
- R v Myatt
- R v Horry
- Cameron v R
- R v Piri
- R v Desmond
- R v Murphy
- R v Harpur
- R v Mane
- R v Blaue
What are the critical factors for determining Murder VS Manslaughter?
Whether the offender intended to
- kill the person, or
- cause bodily injury that the offender knew was likely to cause death
Ascertaining whether an offence has been committed (flow chart)
A person dies
- Was their death caused by another human being? No = No offence
- Were the actions of the other person culpable? No = No offence
- Was the outcome of their actions intentional or deliberate No = manslaughter, yes = Murder
Homicide
(define)
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Homicide and companies
- Manslaughter: an organization can be convicted as a party to the offence (section 66(1))
- Murder: an organization cannot be convicted either as a principal offender or a party to the offence. This is because the offence carries a mandatory life sentence
Homicide and companies
(Case law)
Murray Wright Ltd
Murray Wright Ltd
(held)
Because the killing must be done by a human being, an organization (such as a hospital or food company) cannot be convicted as a principal offender.
Killing of a Child
Section 159
(define)
(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
Culpable homicide
(Section 160 (1))
(1) Homicide may be culpable or not culpable.
Culpable homicide
(Section 160 (2))
(2) Homicide is culpable when it consists in the killing of any person-
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; or
(c) By both combined
(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or
(e) By wilfully frightening a child under the age of 16 years or a sick person.
Culpable homicide
(Section 160 (3))
(3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter.
Culpable homicide
(Section 160 (4))
(4) Homicide that is not culpable is not an offence.
Unlawful Act
(define)
Means a breach of any Act, regulation, rule, or bylaw.
Unlawful Act
(case law)
R v Myatt
R v Myatt (held)
[before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide] it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
Additional commentary for unlawful act.
- it must be objectively dangerous (would a reasonable person in the defendant’s shoes know the risk of harm existed)
- “some harm” means “more than trivial harm”
- must be done without lawful justification or reasonable excuse. For instance no defence such as self defence
Section 150A
(paraphrased)
Applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.
In such cases are only criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person.
Common law allegations of culpable homicide that have been supported
The offender caused death by:
- committing arson
- giving a child an excessive amount of alcohol to drink
- placing hot cinders and straw on a drunk person to frighten them
- supplying heroin to a person who OD’d
- throwing a large piece of concrete from a motorway over bridge into the path of a car
- conducting an illegal abortion where the mother dies
Duties defined in the Crimes Act 1961
(ss 151 to 157)
- (151) provide the necessities and protect from injury when in charge of a vulnerable adult
- (152) provide the necessities and protect from injury as a parent or guardian
- (153) provide necessaries as an employer of U16
- (155) use reasonable knowledge and skill when performing dangerous acts like surgery
- (156) take precautions when in charge of dangerous things like machinery
- (157) avoid omissions dangerous to life
Culpable Homicide
Threats, fear of violence, and deception
(case law)
R v Tomars
R v Tomars (held)
Formulates the issue in the following way:
1. Was the deceased threatened by, in fear of, or deceived by the defendant?
2. If they were, did such threats, fear, or deception cause the deceased to do the act that caused their death?
3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s possition at the time could have reasonably forseen the consequences?
4. Did these foreseeable actions of the victim contribute in a [significant] way to his death.
Culpable Homicide
Threats, fear of violence, and deception
(examples)
- jumps or falls out of a window and dies because they think they are going to be assaulted.
- jumps into a river to escape an attack and drowns
- Has been assaulted and believes their life is in danger, jumps from a train and is killed
Frightening a child or sick person.
What is “wilfully frightening”?
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”
Mens rea in Frightening a child or sick person.
- intend to frighten or reckless to; and
- aware of a real risk the person is U16 or sick
Killing by influence on the mind
(legislation)
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child or aforsead sick person.
Consent to death
Section 63, Crimes Act 1961
No one has a right to consent to the infliction of death upon himself or herself; and, if any person is killed, the fact that he or she gave any such consent shall not affect the criminal responsibility of any person who is party to the killing.
Death from lawful games or contests
- usually non-culpable homicide
- however if from an act likely to cause serious injury then manslaughter
To establish death, you must prove the:
- death occurred
- deceased is identified as the person who has been killed
- the killing is culpable
Death can be proved by direct and/or circumstantial evidence
Where body is not located
(case law)
R v Horry
R v Horry held
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
Justified
(define)
Justified, in relation to any person, means not guilty of an offence and not liable to any civil proceeding
Examples of “justified” acts
- homicide committed in self-defence
- homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of anyone
Murder defined
Section 167
Culpable homicide is murder in each of the following cases
(a) If the offender means to cause the death of the person killed
(b) If the offender means to cause the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not
(c) If the offender means to cause death, or, being so reckless as aforsaid, means to cause such bodily injury as aforsaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.
Further definition of murder
Section 168
Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue.
(a) If he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury.
(b) He administers any stupefying or overpowering thing for any of the purposes aforsead, and death ensues from the effects thereof
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforsead, and death ensues from such stopping of breath
Intent
(define)
A deliberate act
Intent to produce a specific result
Deliberate act
(define)
“Intent” means the act or ommission must be done deliberately. The act or omission must be more than involuntary or accidental
Intent to produce a result
(define)
The second type of intent is to produce a specific result. In these context result means “aim, object, or purpose”.
Must proves for Murder under section 167(a)
- intended to cause death, or
- knew that death was likely to ensue, or
- was reckless that death would ensure
Recklessness
(case law)
Cameron v R
Cameron v R held
Recklessness is established if:
(a) the defendant recognized that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable
Must prove for Murder under section 167(b)
- intended to cause bodily injury to the deceased, and
- knew the injury was likely to cause death, and
- was reckless as to whether death ensued or not
Recklessness for Murder
(case law)
R v Piri
R v Piri held
Recklessness [here] involves a conscious, deliberate risk taking. The degree of risk of death forseen by the accused under s167(b) or (d) must be more than negligible or remote. The accused must recognize a “real or substantial risk” that death would be caused:
Killing in pursuit of an unlawful object
(case law)
R v Desmond
R v Desmond held
Not only must the object be unlawful, but also the accused must know that his act is likely to cause death. It must be shown that his knowledge accompanied the act causing death
Section 66(2) Parties to offences
Where 2 or more persons form a common intent to prosecute an unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose
Joint responsibility, must prove
the secondary party knew it was a probable consequence that the principal might do an act that would, if death ensued, bring their conduct within the terms of Section 168.
(not that death was a probable consequence of carrying out their primary purpose)
Punishment of Murder
Section 172
(1) Every one who commits murder is liable to imprisonment for life.
(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002
Sentencing Act 2002
Section 102, Presumption in favour of life imprisonment for murder
(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
Sentencing Act 2002
Section 103
What is the minimum imprisonment for murder?
- Not less than 10 years.
- must be the minimum to achieve holding to account, denouncing conduct, deterring others, protecting the community.
- If above has no term would be sufficient for 1 or more of above, then life without parole
- can only impose life without parole if over 18 at time of offence
Sentencing Act 2002
Section 104
When is the minimum period over 17 years?
(10)
Unless manifestly unjust to do so, when:
(a) murder was committed to attempt to subvert the course of justice
(b) murder involved calculated or lengthy planning, including making arrangement to receive money etc
(c) the murder involved unlawful entry/presence in a dwelling place
(d) murder was committed in the course of another serious offence
(e) murder with a high level of brutality, cruelty, depravity, or callousness
(ea) the murder was part of terrorist act
(f) the deceased was a constable or prison officer acting in the course of his/her duty
(g) deceased was particularly vulnerable, because age, health, or any other factor
(h) if offender convicted of 2 or more counts of murder, whether or not from the same circumstances
(i) any other exceptional circumstances
Attempts
Definition (1)
- Everyone who,
- Having an intent to commit an offence,
- does or omits an act for the purpose of accomplishing his object
- is guilty of an attempt to commit the offence
- whether in the circumstances it was possible to commit the offence or not
Attempts
Definition (2)
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law
Attempts
Definition (3)
An act done or omitted with intent to commit an offence may constitute an attempt if it is done immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Attempts for Murder
(case law)
R v Murphy
R v Murphy held
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill:
Sufficiently Proximate Attempt
(case law)
R v Harpur
R v Harpur held
[The Court] may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done… is always relevant, though not determinative.
Test for proximity from Semester and Brookbanks
- Has the offender done anything more that getting himself into a position from which he could embark on an actual attempt? Or
- Has the offender actually commenced excecution; that is too say, has he taken a step in the actual offence itself?
Punishment of attempted murder
section 173
14 years
Counselling or attempting to procure murder
section 174
Every one is liable to imprisonment for a term not exceeding 10 years who incites, counsels, or attempts to procure any person to murder any other person in New Zealand, when that murder is not in fact committed
Conspiracy to murder
section 175
Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any other person to murder any other person, whether the murder is to take place in New Zealand or elsewhere
(includes to cause the death of someone outside of NZ in circumstances that would be murder if done in NZ)
Accessory after the fact to murder
section 176
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder
Accessory after the fact
(case law)
R v Mane
R v Mane held
For a person to be an accessory the offence must be complete at the time of the criminal involvement. One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
What are the 2 common law types of manslaughter?
- voluntary manslaughter
- involuntary manslaughter
Voluntary manslaughter
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.
Involuntary manslaughter
Covers those types of unlawful killing in which the death is caused by an unlawful act or gross negligence. In such cases there has been no intention to kill or to cause grievous bodily harm.
Manslaughter, includes?
Culpable homicide that:
- does not come within s167 or s168, or
- comes within ss 167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact as defined in s180(3) of the Crimes Act 1961
Instances of Manslaughter
- Killing in a sudden fight
- Manslaughter by unlawful act
- Manslaughter by negligence
- Negligent drivers
Killing in a sudden fight,
(what do you need to consider?)
If there was:
- self-defence
- the requisite mens rea for a murder charge
if the homicide can be justified as having arising out of self-defence the proper verdict is an acquittal
If the fact there was a fight negates that the defendant had the required mens rea to bring a charge of murder within section 167, the proper verdict is manslaughter
Manslaughter by unlawful act
(4 point test)
- the defendant must intentionally do an act
- the act must be unlawful
- the act must be dangerous
- the act must cause death
Manslaughter by negligence
(3 examples)
1.
Allowing someone to ride on your bonnet when you drove dangerously. No defence that that the deceased agreed (consented) to ride there.
2.
During a lawful game or contest non-culpable unless the defendant’s actions were likely to cause serious injury, then manslaughter.
3.
Even if the deceased contributed to their own death by negligence, it is not a defence if you were also negligent. Contributory negligence is no defence.
Gross negligence
(legislation)
Section 150A
Standard of care applicable to person under legal duties or performing unlawful acts
When does section 150A (Standard of care applicable…) apply?
This section applies I respect of-
(a) the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157; and
(b) and unlawful act referred to in section 160 where the unlawful act relied on requires proof of negligence or is a strict or absolute liability offence.
What is the major departure test for manslaughter?
The act or ommission requires a high degree of negligence corresponding to the common law standard of gross negligence
What sort of test is the “gross negligence” test.
An objective test.
The defendant’s state of mind is not a prerequisite, however it may be relevant if, for example, the defendant knowingly ran a risk, or was indifferent to an obvious risk of death.
What is the punishment for manslaughter?
Section 177
(1) Every one who commits manslaughter is liable to imprisonment for life
Practically what is the punishment for manslaughter?
A Judge, taking all matters in consideration, may impose a penalty from a fine to life imprisonment, depending on the circumstances.
Infanticide
(define)
(1)
Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
If a woman is charged with murder or manslaughter of a child of hers under 10 what verdicts can a jury return?
- Murder/manslaughter, or
- if there is evidence that would support a verdict of infanticide, the jury may return that verdict instead.
If a woman is charged with murder or manslaughter of a child of hers under 10, when can she be acquitted?
If the jury is of the opinion that the balance of her mind was disturbed by childbirth/lactation etc to such an extent that she was insane
What MUST a Judge order if a jury acquitt a woman of infanticide due to insanity?
- Must order that the woman be examined by 2 medical practitioners, and
- the woman must be detained in a place the Judge thinks appropriate, out of a hospital, a facility, or a prison.
Vulnerable adult
(define)
A person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person
What does Duty to protect from injury encompass?
“injury” encompasses not only bodily harm directly caused by other persons but also harm arising from human activities and non-human sources
Abandoning a child
(legislation)
Section 154 Abandoning a child under 6
Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully abandons or exposes any child under the age of 6 years
Duty of persons doing dangerous acts
(legislation)
Every one who undertakes (except in the case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
Duty of person in Charge of dangerous things
(legislation)
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
Acceleration of death
(legislation)
Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his death while labouring under some disorder or disease arising from some other cause
Causing death that might have been prevented
(legislation)
Every one who by any act or omission causes the death of another person kills that person, although death from that cause might have been prevented by resorting to proper means
Causing injury the treatment of which causes death
(legislation)
Every one who causes to another person any bodily injury, in itself of a dangerous nature, from which death results, kills that person, although the immediate cause of death be treatment, proper or improper, applied in good faith.
Preventable death
(case law)
R v Blaue
R v Blaue held
Those who use violence must take their victims as they find them.
Withdrawal of life support
Withdrawal of life support is not “treatment” and withdrawing it does not cause death, but removes the possibility of extending it.
What is Novus actus Intervieniens?
An intervening act that breaks the chain of causation
Examples of s166, injuries causing death
- A person was wounded in a duel and dies from the surgery made necessary by the wound. Guilty of murder
- The deceased had been severely kicked by the defendant, a surgion gave some brandy to restore them and they choked and died. Still criminally liable
- it was necessary to operate because of an assault, the person died under anesthetic, still criminally responsible
Aiding and abetting suicide
(legislation)
Every one… who
(a) Incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or
(b) Aids or abets any person in the commission of suicide.
What is the penalty for Aiding and abetting suicide?
14 years imprisonment
Suicide pact
(murder VS Manslaughter)
(1)
Every one who in persuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly
Suicide pact
(survivor)
(2)
Where 2 or more persons enter into a suicide pact, and in persuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection…., but shall not be convicted of [aiding and abetting suicide]
What is the penalty for being a survivor of a (successful) suicide pact
5 years imprisonment
Suicide pact
(define)
(3)
For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in persuance of the pact unless it is done while he has the settled intention of dying in persuance of the pact
Concealing dead body of child
(legislation)
Every one… who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child dies before, or during, or after birth.
Concealing dead body of child
(penalty)
2 years imprisonment
Section 18 Evidence Act 2006
General admissiblity of hearsay
If-
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were to be required to be a witness
Circumstances under section 16 Evidence Act 2006 for Reasonable Assurance of reliability
- the nature of the statement
- the contents of the statement
- the circumstances relating to the making of the statement
- circumstances relating to the veracity of the person making the statement
- circumstances relating to the accuracy of the observation of the person
Must know case law
(part 2)
- R v Forrest and Forrest
- R v Cottle - (burdern of proof)
- R v Clark
- R v Codere
- R v Cottle - (Automatism)
- R v Joyce
- Police v Lavelle
Protected from criminal responsibility
(define)
Means the person is not guilty of an offence but civil liability may still arise
Children under 10
(legislation)
Section 21, CA ‘61
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
Children between 10 and 14
(legislation, dolci incapax)
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
(define)
Attainment of particular age
For all the purposes of the law of New Zealand the time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth
What type of defence do children under 10 have?
An absolute defence
But you still have to establish whether or not they are guilty
Process for children 10 - 13 alleged to have committed murder or manslaughter
- Charges filed in District Court
- First appearance before the Youth Court
- then case automatically transfers to the High Court for trial and sentencing
Where can Children sentenced for murder or manslaughter be to?
Imprisonment and be detained in an Orange Tamariki Youth Justice Residence under the custody of the Chief Executive of MSD
If they are declared in need of care and protection, can be detained in a Care and Protection Residence under custody of the CE of MSD
Process for children 14 - 16 alleged to have committed murder or manslaughter
Same as 10 - 13
- Charges filed with the District Court
- First appearance before the Youth Court
- automatically transfers to the High Court for trial and sentencing
What can Young People be imprisoned for?
Murder or manslaughter (cat 4), and
Category 3 offences with a maximum penalty of imprisonment for life or at least 14 years
They can also be detained in a Oranga Tamariki Justice Residence under the custody of the Chief Executive of MSD
Insanity
(presumption)
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved
Insanity
(defence)
(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
Insanity
(surrounding circumstamces)
Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.
How is a defence of insanity dealt with
- prosecution cannot offer evidence of insanity
- all evidence of insanity should be provided to Defence council
- it is up to Defence council if they want put up a plea of insanity
Burdern of proof for Insanity
(case law)
R v Cottle
R v Cottle held
(Insanity burden of proof)
As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt.
Insanity decision
(case law)
R v Clark
R v Clark held
The decision as to an accused’s insanity is always for the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.
What are M’Naughten’s Rules?
It is based on the person’s ability to think rationally, so that if 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
- that what they were doing was wrong.
What does a “Disease of the mind” mean?
It has been said to be “a terms which defies precise definition and which can comprehend mental derangement in the widest sense”
The “mind” and “disorder”
“mind” - the mental faculties of reason, memory, and understanding; and the “disorder” may be permanent or temporary, of short or long duration, curable or incurable.
What does a “disease of the mind” not include?
“Disease of the mind” does not include a temporary mental disorder caused by some factor external to the defendant, such as a blow on the head, the absorption of drugs, alcohol, or an anesthetic, or hypnotism.
What is a “disease of the mind” a question of?
A question of law for the Judge.
Disease of the mind is not a medical question but a legal one.
Nature and Quality
(case law)
R v Codere
R v Codere held
(nature and quality)
The nature and 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 he is cutting a loaf of bread would not know the nature and quality of his act.
Automatism
(case law)
R v Cottle
R v Cottle held
(automatism)
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.
The two types of automatism
Sane automatism - the result of somnambulism, a blow to the head, or the effect of drugs.
Insane automatism - the result of mental disease.
Automatism
(define)
Action without conscious volition. An act which is done by the muscles without any control by the mind.
Examples of causes of Automatism (6)
- concussion
- sleep walking
- brain tumor
- epilepsy
- arteriosclerosis
- consumption of alcohol or drugs
When can Intoxication be a defence?
- 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)
When can Intoxication not be used as a defence?
- for strict liability offences, unless they can prove a total absence of fault.
- in cases where the intent is formed and then they took drink/drugs for “Dutch courage” to commit the crime.
When is a defense of Intoxication unlikely to succeed?
When the intent is a very general one.
Eg. Apply force to the person of another (assault), and
Fight with a person in a public place
It is unlikely they will not realize they are striking another person.
“I wouldn’t normally punch a citizen, the demon drink made me do it!”
Such claims are not permitted where the offence is one involving violence or danger to any person and the alcohol or drugs were voluntarily consumed.
Ignorance of the law
(legislation)
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
Compulsion
(legislation)
Subject to the provisons 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 party to any association or conspiracy whereby he is subject to compulsion.
Compulsion
(case law)
R v Joyce
R v Joyce held
The Court of Appeal decided that the compulsion must me made by a person who is present when the offence is committed.
Mistake as a defence
“Except in the case where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence”
Entrapment
(case law)
Police v Lavelle
Police v Lavelle held
It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officers did not initiate the person’s interest or willingness to so offend.
Self-defence
(legislation)
Every one is justifies in using, in the defense of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
Self-defence, test of reasonableness
- What are the circumstances that the defendant genuinely believes exist? (mistaken or not)
- Do you accept the defendant genuinely believes those facts?
- Is the force used reasonable in the circumstances believed to exist?
Notice of Alibi
(what must a defendant do?)
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.
Notice of Alibi
(when must a notice be given?)
The notice under subsection (1) must be given within 10 working days after the defendant is given notice under section 20
s20 notice is given by the Registr if defendant pleads not guilty, or if a child, after first appearance in Youth Court
Notice of Alibi
(what must be included in the notice?)
- name and address of the witness, or any matter known that might be of material assistance in finding that witness. or
- If name and address not included, the defendant must take all reasonable steps, both before and after giving the notice, to ensure the name and address is ascertained or
- if name and address is not known but defendant subsequently finds out, must give written notice as soon as practicable, or
- ## if the prosecutor gives notice that the witness has not been traced, must give any other matter known that might be of material assistance, or on subsequently becoming aware give written notice as soon as practicable, or
Notice of Alibi
(what enquiries should O/C case make?)
- QHA of alibi witness
- enquiries to confirm or rebut evidence on support of the alibi
- inform the prosecutor as soon as practicable of the results.
Procedure when alibi witnesses are interviewed
O/C should not interview an alibi witness unless the prosecutor request it
1 - Advise the defense counsel of the proposed interview and give them a reasonable opportunity to be present.
2 - If the defendant is not represented, endeavor to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
3 - Make a copy of the witness’s signed statement taken at any such interview available to defense counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
Expert evidence
(what must a defendant disclose if they intend to call an expert)
- 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 frame that the courts may allow
Guidelines to consent regarding assault
- Everyone has a right to consent to a surgical operation
- Everyone has the right to consent to the infliction of force not involving bodily harm
- No one has the right to consent to their death or injury likely to cause death
- 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
- 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
What are the specified offences in s168(2), further definition of Murder?
- Treason
- Espionage
- Sabotage
- Piracy
- Piratical acts
- Escape of rescue from prison or lawful custody or detention.
- Sexual violation
- Murder
- Abduction
- Kidnapping
- Burglary
- Robbery
- Arson
