Homicide Law and Defences Flashcards
1
Q
The two critical factors to consider for a charge of murder are whether the offender intended to:
A
- kill the person, or
- cause bodily injury that the offender knew was likely to cause death.
If neither of these intentions can be proven, the most likely charge is manslaughter.
2
Q
Homicide definition
A
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever
3
Q
Murray Wright Ltd [1970] NZLR 476.
A
Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender:
4
Q
When does a child become human ?
Section 159 - Killing of a child definition
A
Simplified:
A child becomes a human being when it has completely proceeded in a living state from 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 due to injuries received before, during, or after birth.
5
Q
Section 160 (2) - Culpable Homicide
A
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; or
(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.
6
Q
What does culpable homicide mean ?
A
Means the killing is blameworthy. (Murder, manslaughter or infanticide)
7
Q
6 indirect ways, allegations of culpable homicide have been supported where the offender has caused death by:
A
AHAHA T
Arson Heroin - Overdose Alcohol to minor Hot cinders and straw on drunk person to frighten them Abortion where the mother dies (Illegal)
Throwing concrete onto motorway
8
Q
R v Myatt - Breach
A
Before a breach of any Act, regulation or bylaw would be an unlawful act [for the purposes of culpable homicide] it must be an act likely to do harm to the deceased.
(Thus, a breach of an electoral law, for example, would not suffice because although it is unlawful, it is not an act likely to do harm to the deceased nor is it an inherently dangerous act.)
9
Q
What cases does Section 150A apply to?
A
Applies to any case where the unlawful act requires proof of negligence, or is a strict or absolute liability offence.
In such a case the person will only be criminally responsible if the unlawful act is a major departure from the standard of care expected from a reasonable person in the particular circumstances.
10
Q
What does Omission to perform legal duty mean and what is the outcome?
A
Where nothing is done when there is a legal duty to act.
The defendant may be convicted of manslaughter or murder if the defendant had the requisite mens rea
11
Q
Legal duty means duty imposed by statute or common law - what are some examples
A
- provide the necessaries and protect from injury (s151)
- provide necessaries and protect from injury to your charges when you are a parent or guardian (s152)
- provide necessaries as an employer (s153)
- use reasonable knowledge and skill when performing dangerous acts, such as surgery (s155)
- take precautions when in charge of dangerous things, such as machinery (s156)
- avoid omissions that will endanger life (s157).
12
Q
Unlawful acts and omission of duty: s160(2)(c) Defined
A
Sometimes both unlawful acts and the omission to perform a legal duty are applicable to the same act. For example, to drive a car so recklessly that you kill a pedestrian is both an unlawful act and an omission to observe your duty to take precautions when you are in charge of a dangerous thing (s156).
13
Q
Threats, fear of violence and deception: s160(2)(d) What must be proven?
A
You must prove that the fear of violence was well founded, but you do not need to show that the deceased’s action was the only means of escape.
14
Q
R v Tomars - Test for frights/deception
A
- Was the deceased threatened by, in fear of or deceived by the defendant?
- If they were, did such threats, fear or deception cause the deceased to do the act that caused their death?
- Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences?
- Did these foreseeable actions of the victim contribute in a [significant] way to his death?
15
Q
Three Examples of culpable homicide caused by actions prompted by threats, fear of violence or deception are when a person:
A
- 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
- who has been assaulted and believes their life is in danger, jumps from a train and is killed.
16
Q
What is the definition for “Frightening” a child or sick person?
A
“Wilfully frightening” is regarded as “intending to frighten, or at least be reckless as to this”.
The defendant must at least have been aware of a real risk that the victim is under 16 or sick.
17
Q
Section 163 Killing by influence on the mind - definintion
A
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.
18
Q
Killing by influence on the mind is not a crime except when:
A
Killing by influence on the mind alone is not a crime except as provided in s163. This would apply to someone who mentally tortures another person who is already mentally or physically sick, so that the victim has a mental breakdown and commits suicide.
19
Q
Rulings around Death from lawful games or contests
A
Normally treated as non-culpable homicide.
Unless death is due to an act that is likely to cause serious injury, they will be guilty of manslaughter.
20
Q
What three things are required to establish proof of death in a culpable homicide
A
You must prove DICK
- Death occurred
- Identity of the deceased
- It is a Culpable Killing
Death can be proved by direct and/or circumstantial evidence.
21
Q
R v Horry - No body located
A
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.
22
Q
Two examples of justified acts that may result in death
A
- homicide committed in self-defence (s48)
- 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 any one (s41).
23
Q
Section 162 - Death must occur within:
A
Within one year and a day
-Inclusive of the day on which the unlawful act or omission contributing to the cause of death took place (whichever is last)
24
Q
What are the three main types of Homicide?
A
murder, manslaughter and infanticide.
25
Can an organisation be convicted of murder or manslaughter?
No - the killing must be done by a human being
An organisation can however be convicted as a party to manslaughter (but not murder as they can't serve the life sentence)
26
What is the legal view of consent to death?
The law does not recognise the right of a person to consent to their being killed (s63 of the Crimes Act 1961).
27
Section 167 - Murder defined
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 to 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 aforesaid, means to cause such bodily injury as aforesaid 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 any one.
28
Section 168(1) - Further definition of murder
(1) 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) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, 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 aforesaid, and death ensues from such stopping of breath.
29
Two types of intent
Deliberate act - Act or omission that is more than involuntary or accidental
Intent to produce a result - aim object or purpose
30
If you are charging an offender with murder under s167 you must show one of what three points:
the defendant:
• intended to cause death, or
• knew that death was likely to ensue, or
• was reckless that death would ensue.
31
R v Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
32
What must be established to prove a defendants state of mind in a case of murder
you must establish that the defendant:
• intended to cause bodily injury to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not
33
R v Piri
Recklessness [here] involves a conscious, deliberate risk taking. The degree of risk of death foreseen by the accused under either s167(b) or (d) must be more than negligible or remote. The accused must recognise a “real or substantial risk” that death would be caused:
34
R v Desmond - killing in pursuit of an unlawful object (Prison wall)
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
35
Section 66 Parties to offences - defined
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them ( If it was known to be a probable consequence)
36
Section 172 Punishment of murder - defined
(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.
37
Section 102 (Sentencing Act) Presumption in favour of life imprisonment for murder - defined
(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.
38
Section 72, Crimes Act 1961
| Definition of attempts
(1) Having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object (whether in the circumstances it was possible to commit the offence or not)
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence
39
R v Murphy - Attempts
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:
40
R v Harpur
[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.
41
When determining an attempt what are Two factors that test for proximity
* Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
* Has the offender actually commenced execution; that is to say, has he taken a step in the actual offence itself?
If the answer to either question is “yes” then we can say there has been an attempt as a matter of
42
Punishment of attempted murder
Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
43
Section 174 Counselling or attempting to procure murder - Defined
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.
(Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under s 66(1)(d) to an attempt to murder under s 173.)
44
Section 175 Conspiracy to murder - defined
(1) Every one is liable to imprisonment for a term not exceeding 10 years who conspires or agrees with any person to murder any other person, whether the murder is to take place in New Zealand or elsewhere.
Section 175 may apply regardless of whether murder is committed or not.
45
Section 176 Accessory after the fact to murder - term
Every one is liable to imprisonment for a term not exceeding 7 years who is an accessory after the fact to murder.
46
Section 71 - Definition of Accessory after the fact
Knowing any person to have been a party to the offence,
receives, comforts, or assists that person
OR tampers with
OR actively suppresses any evidence against him,
in order to enable him to escape after arrest or to avoid arrest or conviction.
47
R v Mane - Accessory after the fact
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.
48
What is 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.
49
What is 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, then, includes culpable homicide that:
• does not come within s167 or s168
• comes within ss167 and 168, but is reduced to manslaughter because the killing was a part of a suicide pact
50
four-point test for proving an unlawful act for manslaughter.
1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death
51
Section 150A Standard of care applicable to persons under legal duties or performing unlawful acts
A person is criminally responsible for omitting to discharge or perform a legal duty, or performing an unlawful act, if it is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies or who performs that unlawful act.
52
177 Punishment of manslaughter
(1) Every one who commits manslaughter is liable to imprisonment for life.
However, the judge, taking all matters into consideration, may impose any penalty from a fine to life imprisonment, depending on the circumstances.
53
In a charge of attempt to murder, what is the Crown required to prove?
Crown must establish the mens rea and actus rea as set out in s72 of the Crimes Act 1961. An intention to kill must be proved.
54
When considering what charge to press in a case where someone has been killed in a sudden fight, what issues do you need to consider?
You need to consider whether there was:
− self-defence
− the requisite mens rea for a murder/manslaughter charge
55
Section 178 Infanticide - defined
(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.
56
151 Duty to provide the necessaries and protect from injury
(1) Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—
(a) to provide that person with necessaries; and
(b) to take reasonable steps to protect that person from injury
57
152 Duty of parent or guardian to provide necessaries and protect from injury
(1) Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—
(a) to provide that child with necessaries; and
(b) to take reasonable steps to protect that child from injury
58
153 Duty of employers to provide necessaries
(1) Every one who as employer has contracted to provide necessary food, clothing, or lodging for any servant or apprentice under the age of 16 years is under a legal duty to provide the same, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that servant or apprentice is caused, or if his life is endangered or his health permanently injured, by such omission.
59
Vulnerable adult definition
“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”.
Vulnerability may be short-lived or temporary.
60
Necessaries definition
commodities and services necessary to sustain life, such as food, clothing, housing, warmth and medical care
61
Duty to protect from injury definition
In this context “injury” encompasses not only bodily harm directly caused by other persons but also harm arising from human activities and non-human sources.
62
154 Abandoning child under 6 - defined
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.
63
155 Duty of persons doing dangerous acts - defined
Every one who undertakes (except in 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.
64
156 Duty of persons in charge of dangerous things - defined
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.
65
Anything whatever definition (156)
the term “anything whatever” in section 156 is extremely wide. It includes such things as motor vehicles, trains, animals, ships, weapons, machinery and explosives.
66
157 Duty to avoid omissions dangerous to life
Every one who undertakes to do any act the omission to do which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty
67
Encouraging death
Section 163 concerns killing someone by influencing their mind. This means that if someone was driven into an extreme anxiety state by work or domestic pressures, but had no previous mental or physical ailment, and committed suicide, the person causing the anxiety would not be culpable for the death.
68
164 Acceleration of death - defined
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.
69
165 Causing death that might have been prevented
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.
70
166 Causing injury the treatment of which causes death
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
71
R v Blaue - (Jehovah's witness example)
Those who use violence must take their victims as they find them.
72
179 Aiding and abetting suicide
Every one is liable to imprisonment for a term not exceeding 14 years 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.
73
180 Suicide pact
(1) Every one who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
(2) Where 2 or more persons enter into a suicide pact, and in pursuance 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 and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act.
(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;
74
181 Concealing dead body of child
Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.
75
What types of things fall into the category of dangerous things discussed in s156 of the Crimes Act 1961?
motor vehicles, trains, animals, ships, weapons, machinery or explosives, and may include such things as the machinery inside a mussel factory, faulty scaffolding that collapses because of faulty erection and inspection, unfenced holes or other industrial-type incidents, depending on the circumstances.
76
Is a person, who helps another person commit suicide, criminally liable for their actions?
Section 179 makes it an offence for a person (Person A) to assist another person (Person B) to commit suicide without any intention of Person A committing suicide themselves
Section 180(1) makes it an offence to enter into a suicide pact, and only one person dies
77
18 General admissibility of hearsay Evidence Act 2006
(1) A hearsay statement is admissible in any proceeding 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 required to be a witness.
78
What 5 things would determine the "reasonable assurance" that a statement can be relied on.
* 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
79
Justified definition
means that the person is not guilty of an offence and is not liable civilly.
80
Protected from criminal responsibility definition
means the person is not guilty of an offence but civil liability may still arise.
81
Infancy - Section 21 Children under 10
(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.
82
Infancy - Section 22 Children between 10 and 14
(1) 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.
83
What three things must the prosecution prove in the case of a child between 10 - 13 years (inclusive)
- Actus Reus
- Mens Rea
- That they knew it was wrong or contrary to law
84
R v Forrest and Forrest - Age
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim's] age.”
85
Court process for Child 0-13 and Young Person 14-16
Charges filed in District Court, first appearance in the Youth Court and then transferred to High Court for trial and sentencing.
Both can be sentenced to imprisonment for murder or manslaughter, however child to be detain in CYP care
86
Section 23 Insanity - defined
(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.
87
R v Cottle
Burden of Proof in insanity cases:
"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."
Explanation: Thus, the defendant is not required to prove the defence of insanity beyond reasonable doubt, but to the satisfaction of the jury on the balance of probabilities.
88
R V Clark
Insanity
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.
89
M’Naghten’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.
90
Disease of the mind definition
(No court definition) “a term which defies precise definition and which can comprehend mental derangement in the widest sense”
91
Physical damage requirements for disease of the mind ?
Physical damage not required.. the mental faculties of reason, memory, and understanding; and the disorder may be permanent or temporary, of short or long duration, curable or incurable
92
What mental disorder's are not included as a disease of the mind?
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 anaesthetic, or hypnotism
93
R v Codere
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 that he is cutting a loaf of bread would not know the nature and quality of his act.
94
Automatism definition
a state of total blackout, during which a person is not conscious of their actions and not in control of them.
95
R v Cottle - 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.
96
Causes of automatism:
- concussion and sleepwalking
- brain tumour,
- epilepsy,
- consumption of alcohol or drugs.
-arteriosclerosis (which can cause temporary unconsciousness by interfering with the supply of blood to the brain)
97
Two types of automatism
-Sane automatism
the result of sleepwalking, a blow to the head or the effects of drugs
-Insane automatism
the result of a mental disease
98
Is automatism to be treated as insanity?
Whether or not a case of automatism is to be treated as such depends on the presence or absence of a disease of the mind
The significant point to note about this type of automatism is that it may lead to a finding of insanity, even if the defendant has not raised this defence and has pleaded automatism alone
99
Is Automatism induced by drink or drugs a defence?
A complex and should not be confused with the general defence of intoxication.
This defence is available if the evidence of the defence can clearly raise the issue.
100
Rules around intoxication as a defence
May be allowed where:
* 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).
101
Which offences are the defence of intoxication available ?
Any crime that requires intent.
Any offence that does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such an offence is to prove a total absence of fault
102
Section 25 Ignorance of law - defined
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
103
What are the general rule around children and ignorance of the law ?
Where a child does not know their act was contrary to law, they will not be liable for any offence
104
What is the standard of proof required to prove the defence of insanity to the satisfaction of the jury?
On the balance of probabilities.
105
What type of defence does a child under 10 years have?
A child under 10 years has an absolute defence.
106
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?
A question of law.
107
Section 24 Compulsion - defined
Simplified:
A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm. The defendant must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.
108
What is a requirement for a threat to be considered compulsion
The threats of death or grievous bodily harm must be “immediate” and from a person present at the time.
109
R v Joyce - Compulsion
Service station example:
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed.
110
Mistake - Defined
“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”
In cases where intent is required to be proven - genuine mistake or ignorance of fact is available as a defence.
111
What is the ruling around Entrapment as a defence
In New Zealand the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.
112
Police v Lavelle
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.
113
Section 48 Self-defence and defence of another defined
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.
114
Test for Initial need to use force - self defence
The test is subjective as to the initial need to use force in self-defence. Force may possibly be used before any actual bodily harm or threat is received, merely to escape from or break out of a threatening or dangerous situation
115
Subjective objective test - self defence
Once the defendant has decided that use of force was required (a subjective view of the circumstances as the defendant believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
116
S48 - The degree of force permitted is tested initially under the following 3 subjective criteria:
* 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?
117
Section 22 Notice of alibi - deinfed
Simplified:
-Defendant must give notice to the Prosecutor of particulars of the alibi within 10 working days after being given notice under S20.
-Notice to include, name address of witness or any material that may assist in locating them.
OR
-Take reasonable steps to ascertain the Name or address of the witness.
OR
-If the defendant becomes aware of the witness or material that may assist - provide it as soon as practicable
OR
-If the defendant is advised the witness has not been located with info provided, they must notify of any further info that may assist
118
Section 20 requires the Court or Registrar to give the defendant written notice of the requirements of section 22 and 23 on what two occasions
* 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.
119
Who is responsible for making enquiries into an alibi
Whenever a defendant puts forward an alibi under section 22(1), the O/C case must ensure a prosecution report (QHA) and an active charges report are prepared on the witness.
The O/C case should also make inquiries to confirm or rebut evidence in support of the alibi.
120
3 step Procedure when alibi witnesses are interviewed
1 - Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
2 -If the defendant is not represented, endeavour 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 a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
121
If the defendant intends to call an expert witness during proceedings, what are the 3 things they must disclose to the prosecutor:
* 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 defendants trial, or within any further time that the court may allow
122
What is compulsion?
the act of compelling a person to do something against their will.
123
In relation to compulsion, what does “immediate” mean?
“immediate” means at the scene from a person present at the time.
124
What in effect is a defence of mistake?
A defence of mistake is in effect a denial of intent.
125
How does the defence of entrapment apply in New Zealand?
With the defence of entrapment in New Zealand, the courts rely on judicial discretion to exclude unfairly obtained evidence.
126
Who decides whether there is evidence of self-defence?
Evidence of self-defence is decided by the judge
127
What does “alibi” mean?
Alibi means being elsewhere at the material time.
128
What people are considered unable to give consent?
− a child
− unable to rationally understand the implications of their defence
− subject to force, threats of force or fraud.
129
What actions do not allow for a defence of consent?
− 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.
