Homicide Defences Flashcards
Where are matters of justification and excuse contained?
In part 3 of the Crimes Act 1961
What is the general rule as to justification?
Under S20 CA 61, all the common law defences are retained
What is the exception to the general rule of justification?
This is so long as they are not inconsistent with the Crimes Act or any other enactment.
What is the definition of justified?
It means that the person is not guilty of an offence and is not liable civilly.
What does “protected from criminal responsibility” mean?
That the person is not guilty of an offence but civil liability may still arise.
Where are defences for children set out?
In sections 21 and 22 of the Crimes Act 1961.
Section 21 – What is the title?
Children under 10.
Are children under 10 liable?
No child under 10 is liable to be convicted of an offence
Section 22 – What is the title?
Children between 10 and 14
Are children between 10 and 14 liable?
Not UNLESS he knew either that the act or omission was wrong or that it was contrary to law.
How to determine the correct age of a child?
Shall be at the commencement of the relevant anniversary of the date of his birth
What does a child under the age of 10 have?
An absolute defence to any charge brought against them.
What do you have to establish if the offender is under 10?
You still have to establish whether or not they are guilty.
What is the test of knowledge in addition to? In regards to children between 10-14.
The test of knowledge is in addition to the mens rea and actus reus requirements.
What if the test of knowledge is not met?
Then the child cannot be criminally liable for the offence.
Who is the onus for the test of knowledge on?
It is on the prosecution to establish hat the accused knew the act or omission was wrong or contrary to law.
What does the test of knowledge have to prove?
That the child must know their act was wrong but need not understand that it was seriously wrong.
What is the prosecution required to provide for evidence of age?
They are required to produce evidence of age and provide evidence that identifies the defendant as the person named in the certificate.
What is the relevant age?
Is that of the child at the time they committed the offence, not their age when they appeared in court.
What is the general rule for children under the age of 14?
All child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14.
How can a child under 10, who is an offender of serious crime, be dealt with?
Consider having the child and family dealt with as a care and protection matter. The circumstances are then reported to Oranga Tamariki for the attention of Care and Protection Co-ordinator.
When a child aged 10-13 is alleged to have committed murder or manslaughter (Cat 4 offences) how are they dealt with?
They are usually dealt with under the youth justice provisions of the OT Act.
Charges are filed in the District Court, first appearance is at the Youth Court and then it will be automatically transferred to the High Court for trail and sentencing.
What can children be sentenced to for a charge of murder or manslaughter?
They can be sentenced to imprisonment and detained in a Child, Youth Family residence under the custody of the chief executive of the ministry of social development.
If child offenders are declared in need of care and protection, what can be done?
They can be detained in a Care and Protection Residence under the custody of the Chief Executive of the Ministry of Social development.
How are children aged 14-16 years dealt with when charged with murder or manslaughter?
The process is the same as those aged 10-13. The charges are filed in the District Court, the first appearance takes place in the Youth Court and then automatically transfers to the High Court for trial and sentencing.
Can young people be imprisoned?
They can be imprisoned for murder, manslaughter, cat 3 and 4 offences for which the max penalty includes imprisonment for life or for at least 14 years. They can also be detained in a Child, Youth and Family youth residence.
Can you prosecute children aged 12 and 13?
Yes, but only for serious offences where it is punishable by 14 years to life imprisonment or where the child is 12 or 13, is a previous offender (for a serious offence) and the offence is punishable by 10 years to 14 years imprisonment.
What is defined in Section 23 of the Crimes Act 1961?
Insanity.
Under the definition of insanity, what is presumed?
It is presumed that everyone is sane at the time of doing or omitting any act until the contrary is proved.
When does a person avoid conviction on the grounds of insanity?
An act that is done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable of;
- Understanding the nature and quality of the act or omission
- Knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
What does a person have to be incapable of to be acquitted on the grounds of insanity?
- Understanding the nature and quality of the act or omission
- Knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
Is insanity before or after the time he did or omitted the act sufficient?
It 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.
Who is to raise the issue of insanity?
The defence is to raise the issue of insanity and the prosecution is prohibited from adducing evidence of insanity EVEN if the accused has sought an acquittal because of state of mind not amounting to insanity.
If a person poses a risk to the public (insanity) what can be done?
There is a procedure by which they can become the subject of a “restricted patient” order under the mental health act.
What can a judge do in regards to insanity?
A judge may put the issue of insanity before the jury. However, if the defence do not choose to plead insanity it would only be in exceptional circumstances that this would be put to the jury.
What are the practical implications on the crown in relation to insanity?
It is not proper for the crown to call evidence of insanity, but any relevant evidence in the hands of the crown should be offered to the defence, leaving it to the defendant to put up the plea of insanity if they wish to do so.
Even if insanity is not called as a defence, what may the judge do upon conviction?
The judge may still commit a person to a hospital or secure facility or INSTEAD of passing a sentence, order that person be treated as a patient under the mental health act or be cared for as a care recipient under the Intellectual Disability Act.
What must the court be satisfied of to make orders for the defendant to be treated as a patient under the mental health act etc?
They must be satisfied that the offenders mental impairment requires the compulsory treatment or compulsory care of the offender either in the offenders interest, or for reasons of public safety.
What if there is strong evidence of insanity?
A person can be acquitted of a charge, even if they or their counsel have not put up the defence of insanity, if there is strong evidence to indicate the defendant did commit the alleged offence but was insane at the time.
In circumstances where the judge puts the issue of insanity to the defence, what must they do?
In summing up before the jury deliberates its verdict, the judge must notify the jury that if it decides to acquit the defendant it must be specific as to whether this is on the grounds of the defendants innocence or their insanity.
What is allowed Under s20 of the CP(MIP) Act?
It allows the case to be concluded more quickly and there is now the possibility of entering the verdict “Not guilty on account of insanity” by consent.
Who is the burden of proof of insanity on?
Because the defence pleads insanity and because the law assumes that the defendant is sane, it is up to the defence to prove that the defendant is insane.
What is the standard of proof for insanity?
Because the burden of proof is on the defence, the standard of proof is lower and they need only prove it on a balance of probabilities. That is, the jury need only think it is more likely that the defendant is insane.
What is insanity a question of?
It is a legal question, not a medical one.
What can insanity be used as a defence for?
Any offence punishable by imprisonment.
What is the question of whether or not the defendant is legally insane addressed by?
Evidence from medical experts called by the defence and the crown.
What are the M’Naghten rules used to establish?
Whether or not a defendant is insane
What are the M’Naghten rules based on?
A persons 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 is the definition of “A disease of the mind”?
It is said to be a “term which defies precise definition and which can comprehend mental derangement in the widest sense.
What was found to be sufficient to be included as “a disease of the mind”?
A manic episode of bipolar affective disorder with psychotic features was a disease of the mind
Epilepsy could also be included
Does there have to be damage to the brain for it to be included as “a disease of the mind”?
It can be a disease of the mind whether or not there is any damage to the brain or other physical organ, the law is only concerned with the mind
What is included in the definition of “mind”?
The mental faculties of reason, memory, and understanding. It can be permanent or temporary, of short or long duration, curable or incurable.
