Homicide Defences

Question 1

General rule as to justification?

Answer 1

Under S20 CA61 all common law Defences are retained, so long as they are not inconsistent with the Crimes Act or any other enactment.

Question 2

Justified?

Answer 2

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

Question 3

Protected from criminal responsibility?

Answer 3

Means the person is not guilty of an offence but civil liability may still arise.

Question 4

S21 CA61 children under 10

Answer 4

(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.

Question 5

S22 CA61 children 10 to 14

Answer 5

(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of or over 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.

Question 6

Attainment of age?

Answer 6

S5 Age of Majority Act 1970.
For all 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.

Question 7

Burden of proof regarding child offenders?

Answer 7

Children under 10 have an absolute defence to any charge, although still need to establish whether they are guilty.

Must show that a Child 10 to 13 knew their act was wrong or contrary to law in addition to mens rea and actus reus requirements.

Question 8

R v Rapira

Answer 8

The child must know that their act was wrong but need not understand that it was seriously wrong.

Question 9

R v Forrest and Forrest

Answer 9

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

Question 10

Prosecuting children?

Answer 10

Seek advice from District youth prosecutor.

All child offenders will be referred to the Care and Protection coordinator until they reach the age of 14.

Children 10 to 13 who commit murder/manslaughter are usually dealt with under youth justice provisions in OT Act 1989.
- Charges filed district court, first appearance Youth Court, automatic transfer to High Court.

Question 11

Children sentenced to imprisonment?

Answer 11

Children can be sentenced to imprisonment for murder and manslaughter and detained in a OT youth justice facility.

Question 12

Young persons sentenced to imprisonment?

Answer 12

Can be imprisoned for murder, manslaughter, category 4 offences and category 3 offences with at least 14 years to life penalty.

Question 13

S272(1) OT Act89

Prosecuting children serious offences?

Answer 13

Can prosecute children 12 and 13 for offences punishable by 14 years to life (other than murder/manslaughter) or where child is a previous offender (serious offence) and offence punishable by 10 to 14 years.

Question 14

S23(1)CA61

Answer 14

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

Question 15

S23(2)CA61

Answer 15

(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 16

S23(3)CA61

Answer 16

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.

Question 17

Who can raise the defence of insanity?

Answer 17

Insanity is a matter for the defence to raise and the prosecution is prohibited from aducing evidence of insanity… (R v Green)

A judge may put the issue of insanity before the Jury (S20(4) Criminal Procedure (Menatlly impaired persons) Act 2003)

Question 18

Restricted patient?

Answer 18

Where the defendant poses a risk to the community, he may become a restricted patient under S54(1) Mental Health (compulsory assessment and treatment) Act 1992.

Question 19

When convicted of an imprisonable offence, what are the options available to the Judge in relation to an insane person?

Answer 19

S34 Criminal Procedure (Mentalky impaired persons) Act 2003 states the Judge may;

• commit a person to a hospital or secure facility; or
• order that the offender is treated as a patient under the Mental health (compulsory assessment and treatment) Act 1992; or
• is cared for as a care recipient under the Intellectual Disability (compulsory care and rehabilitation) act 2003.

Question 20

Before making any orders under S34 CP(MIP)Act03, what must the Court be satisfied of?

Answer 20

That the offended mental impairment requires the compulsory treatment or care of the offender either;

• in the offenders interest; or
• for reasons of public safety.

Question 21

Can a person be acquitted of an offence for insanity if the defence had not raised insanity as a defence?

Answer 21

Yes.
S20(4) CP(MIP) ACT03 provides that where there is strong evidence of insanity, the Judge must direct the jury’s attention to the defence of insanity.
The jury must be specific on its verdict to acquit on grounds or innocence or insanity.

Question 22

R v Cottle (standard or proof for insanity)

Answer 22

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

Question 23

R v Clark

Answer 23

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 not been unable to know that his act was morally wrong.

Question 24

McNaughton’s rules?

Answer 24

Used to establish whether or not a defendant is insane.
It is based on the person’s ability to think rationally, so that if a person is insane they were acting under a defect of reason from a disease of the mind that they did not know:
- the nature and quality of their action, or
- that what they did was wrong.

Question 25

Disease of the mind?

Answer 25

Said to be a term which defies precise definition and which can comprehend mental derangement in the widest sense.

• need not be physical damage to the brain.
• disorder may be permanent or temporary
• may be of a short or long duration
• curable or incurable.

Question 26

R v Cottle

Answer 26

Epilepsy, although physical, can amount to a disease of the mind.

Question 27

What is not included as a disease of the mind?

Answer 27

Does not include a temporary mental disorder caused by some external factor, such as a blow to the head, the absorbtion of drugs, alcohol, or an anaesthetic, or hypnotism.

Question 28

Who determines whether a person has a disease of the mind?

Answer 28

Whether a particular condition is a disease of the mind is a question of law for the Judge. It is not a medical question but a legal one.

Question 29

Nature a quality of the act?

Answer 29

A composite expression dealing with the physical character of the conduct.

Question 30

R v Codere

Answer 30

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 to the moral quality of the act. Thus a person who is deluded that he cuts a women’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.

Question 31

What is the test in relation to mental impairment?

Answer 31

The defendant knew there act was morally wrong, they do not need to know they were legally wrong.

Question 32

Public interest test?

Answer 32

In the case of a serious homicide, the public interest to detain the offender may override other factors.
S31 CP(MIP) Act, the Attorney - General may direct that the defendant be held as a patient or a care recipient.

Question 33

Automatism?

Answer 33

A state of total blackout, during which a person is not conscious of their actions and not in control of them.

Question 34

R v Cottle (automatism)

Answer 34

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

Question 35

Criminal liability for automatism?

Answer 35

Actions are involuntary and the common law rule is that there is no liability for such conduct.

Question 36

Causes of automatism?

Answer 36

Concussion
Sleepwalking
Brain tumor
Epilepsy
Arteriosclerosis
Consumption of alcohol or drugs

Question 37

Automatism caused by drugs or alcohol?

Answer 37

The Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention. Convincing evidence is necessary to support it.

Question 38

What are the two types of automatism?

Answer 38

Sane automatism - the result of Sleepwalking, a blow to the head or the effects of drugs.

Insane automatism - the result of mental disease.

Question 39

What is the general rules is relation to the defence of intoxication?

Answer 39

• where the intoxication causes a disease of the mind so as to bring S23 CA61 (insanity) into effect.
• if intent is required as an essential element and the drunkenness is such that the defence can plead a lack of intent
• where the intoxication causes a state of automatism (complete acquittal)

Question 40

What level of proof is required for a defence of intoxication to succeed?

Answer 40

Only need to establish reasonable doubt about the defendant’s required state of mind at the time of the offence.

Question 41

What action will disqualify a defence of intoxication or automatism?

Answer 41

Where a person formed an intention to commit a crime and took drink or drugs as part of the method of committing the crime (Dutch courage).

Question 42

Ignorance of law?

Answer 42

S25 CA61

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

Question 43

Compulsion or duress?

Answer 43

The act of compelling a person to do something against their will.

Question 44

When does a person act under compulsion?

Answer 44

If they commit an offence having been compelled to do so by threats of immediate death or Gbh to themselves or another person present when the offence is committed.

The threat must be operating in their mind at the time of the act and so grave as to cause a reasonable person to act the same way.

Question 45

S24(1) CA61 (compulsion)

Answer 45

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

Question 46

R v Joyce

Answer 46

Compulsion must be made by a person who is present when the offence is committed.

Question 47

Mistake?

Answer 47

Except I the cases where proof of men’s rea is unnecessary, bona fide mistake or ignorance as to matters of fact is avaibale as a defence.

Question 48

Entrapment?

Answer 48

Occurs when an enforcement officer deliberately causes a person to commit an offence.

Is not a defence per se, but Court may exclude evidence if unfair.

Question 49

Police v Lavelle

Answer 49

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.

Question 50

Self defence S48 CA61

Answer 50

Everyone 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 51

Subjective test for self defence?

Answer 51

• what are the circumstances that the defendant genuinely believes existed?
• do you accept the defendant genuinely believes those facts?
• is the force used reasonable in the circumstances?

Question 52

Alibi?

Answer 52

The plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere.

Question 53

Notice of Alibi?

Answer 53

S22 CA61

(1) defendant must give written notice of Alibi
(2) notice must be given within 10 working days after defendant given notice under S20
(3) notice must include name, address of witness or if unknown any matter known that might be of material assistance in finding that witness.

Question 54

What are the procedures for interviewing an alibi witness?

Answer 54

• Should not be interviewed unless prosecutor requests it.
• advise defence counsel of interview and give reasonable opportunity to be present.
• if defendant not present, endeavor to have interview in presence of independent person not being member of police.
• make copy of statement available to defence through prosecutor.
• information that reflects on credibility of Alibi witness can be withheld.

Question 55

Expert evidence called by defence?

Answer 55

Defendant must disclose at least 10 days before trial;

• any brief of evidence or any report provided by that witness
• a summary of the evidence and conclusions if brief or report not available.

Question 56

Consent?

Answer 56

A person’s conscious and voluntary agreement to something desired or proposed by another.

Question 57

What are the guidelines to consent regarding assault?

Answer 57

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.