Homicide Defences - Progress Tests

Question 1

What is outlined in s21 CA61?

Answer 1

Children under 10

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.

Absolute defence.

Question 2

What is outlined in s22 CA61?

Answer 2

Children between 10 and 14

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.

Knew their act was wrong.

Question 3

What is outlined in s5 of the Age of Majority Act 1970?

Answer 3

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.

Question 4

Who are child offenders referred to?

Answer 4

The Care and Protection Co-ordinator (until they reach the age of 14 years).

Question 5

What happens when a child under 10 years commits an offence?

Answer 5

Consider having the child and family dealt with as a Care and Protection matter. Circumstances are reported to OT for the attention of the Care and Protection Co-ordinator.

Question 6

What happens when a child aged 10 to 13 years commits an offence?

Answer 6

Charges are filed in the District Court, the first appearance takes place before the Youth Court and then case then automatically transfers to the High Court for trial and sentencing.

Children aged 10 to 13 can be sentenced to imprisonment and be detained in a CYF Youth Justice Residence under the custody of the Chief Executive of the MSD.

Question 7

What happens when a child aged 14-16 years commits an offence?

Answer 7

Charges are filed in the District Court, the first appearance takes place before the Youth Court and then case then automatically transfers to the High Court for trial and sentencing.

Young persons can be sentenced to imprisonment for murder, manslaughter, cat 4 offences and cat 3 offences for which the max penalty is life or 14 years.

They can also be detained in a CYF Youth Justice Residence under the custody of the Chief Executive of the MSD.

Question 8

What is the exception to the general age-related sentences?

Answer 8

Children aged 12-13 can be prosecuted for certain serious offences (14 years to life imprisonment offences, other than murder or manslaughter), or where the 12-13yo is a previous offender for a serious offence and the offence is punishable by 10 to 14 years imprisonment.

Question 9

From whom should you seek advice in relation to questioning of children and young persons?

Answer 9

District Youth Prosecutor to ensure compliance with the OT Act.

Question 10

What is outlined in s23 CA61?

Answer 10

Insanity

(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

(3) 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 11

What is the M’Naghten’s Test?

Answer 11

M’Naghten’s test is based on the rationality of the defendant and depends on whether the person was:
- 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 12

What is the difference between ‘brain’ and ‘mind’?

Answer 12

Disease of the mind does not have to include physical damage to the brain, the law is concerned with the ‘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.

Question 13

What are the consequences of being found unfit to stand trial or acquitted on account of his or her insanity?

Answer 13

The court must decide whether to detain, release or apply alternative orders to the person (public interest).

May be detained as a special patient or special care recipient under s24 and s25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Question 14

What is the culpability regarding automatism?

Answer 14

Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct.

Question 15

What are examples of automatism?

Answer 15

• Concussion (Bratty)
• Sleepwalking (Bratty)
• Brain tumour
• Epilepsy
• Arteriosclerosis
• Consumption of alcohol or drugs

Question 16

What are the two types of automatism?

Answer 16

1. Sane automatism: the result of sleepwalking, a blow to the head or the effect of drugs
2. Insane automatism: the result of a mental disease

Both forms of automatism involve action without conscious volition.

Question 17

Regarding automatism, what are some examples of differing requirements of intent?

Answer 17

1. No intent required: Driving with an excess breath alcohol content. Defence must prove a total absence of fault – the person drove without conscious appreciation of the fact of driving, or of the fact of intoxication.
2. Intent required: Any offence that has intent as an element of the offence. Assault.

Question 18

In what situations might intoxication be used as a defence to the commission of an offence?

Answer 18

• Where the intoxication causes a disease of the mind so as to bring s23 (insanity) 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 a strict liability offence?

Answer 19

Any offence that does not require an intent.

Question 20

What is outlined in s25 CA61?

Answer 20

Ignorance of law

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

Question 21

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

Answer 21

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

Question 22

When does a person act under compulsion?

Answer 22

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

These threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.

Question 23

In relation to compulsion, what does ‘immediate’ mean?

Answer 23

Means at the scene from a person present at the time.

Question 24

What is outlined in s24 CA61?

Answer 24

Compulsion

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 25

What in effect is a defence of mistake?

Answer 25

A defence of mistake is in effect a denial of intent.

Question 26

Under what circumstances might ‘mistake’ be used as a defence?

Answer 26

If the elements of an offence include a requirement of intention, knowledge, or subjective recklessness, a person can be acquitted if there was no such state of mind at the time of the actus reus even though that mistake of fact may not have been based on ‘reasonable grounds’.

Except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence.

Question 27

What is outlined in s48 CA61?

Answer 27

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 28

What is the test of self-defence?

Answer 28

The test of self-defence is subjective.

Question 29

What is the subjective criteria is deciding the degree of force?

Answer 29

• 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 30

What is the process for providing an alibi?

Answer 30

1. Defendant must give written notice to the prosecutor of the particulars of the alibi
2. The notice must be given within 10 working days after the defendant is given notice under s20

Question 31

In what situations might s20 apply?

Answer 31

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

Question 32

What must a defendant include in notice of alibi?

Answer 32

• The name and address of the witness or any matter known by the defendant that might be of material assistance in finding that witness
• If no name or address, the defendant must have taken all reasonable steps to ascertain the name and address
• If no name or address, provide the information as soon as they know of it
• If the witness has not been traced, the defendant must provide any information that might help in locating the witness

Question 33

What 3 steps should be followed when obtaining an alibi witness statement?

Answer 33

1. Advise defence counsel of the proposed interview and give them a reasonable opportunity to be present
2. If the defendant is not represented, allow a non-Police person to be present
3. Make a copy of the statement and make available to defence via the prosecutor

Question 34

What must defence provide prosecution with if they intend to call an expert witness?

Answer 34

• Any brief of evidence or any report provided by that witness
• If the above is not available, a summary of the evidence to be given
• Information must be disclosed at least 10 working days before the date fixed for the defendant’s trial

Question 35

What are the guidelines regarding consent?

Answer 35

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 36

What people are considered unable to give consent?

Answer 36

• A child
• Unable to rationally understand the implications of their defence
• Subject to force, threats of force or fraud

Question 37

What actions do not allow for a defence of consent?

Answer 37

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