Homicide Law - Defenses

Question 1

Define Justified

Answer 1

Justified means that a person is not guilty of an offence and is not liable civilly

Question 2

What does “Protected from criminal responsibility” mean?

Answer 2

“Protected from criminal responsibility” means the person is not guilty of an offence but civil liability may still arise.

Question 3

Defense for children under 10 years old

Answer 3

a person who is under the age of 10 cannot be found guilty of committing a crime.

A child aged under 10 years has an absolute defence to any charge brought against them.

Even though the child cannot be convicted, you still have to establish whether or not they are guilty.

Question 4

Defense for children under 10 - 14 years old

Answer 4

A person who is between the ages of 10 and 14 cannot be found guilty of committing a crime unless they knew that what they did or didn’t do was wrong or against the law. You must prove the act, intent and knowledge.

Question 5

What is required for Proof of age

Answer 5

Proof of age
The prosecution is required to produce evidence of age (for example, a birth certificate) and provide evidence that identifies the defendant as the person named in the certificate. The relevant age is that of the child at the time they committed the offence, not their age when they appear in court.

Question 6

R v Forrest & Forrest

Answer 6

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

Question 7

What is R v Clancy

Answer 7

The complainants date of birth given by their mother is sufficient to prove age.

Question 8

How are court proceedings handled for 10-13 year olds charged with murder or manslaughter?

Answer 8

They will appear in Youth Court on their first appearance. The matter will automatically transferred to the high court for trial and sentencing.

They can be sentenced to imprisonment or be detained in OT residence for:

• murder / manslaughter
• Cat 3 / 4 offences which old a term of 14 years or life imprisonment.

Question 9

Who should you seek advice from in relation to questioning children and your persons?

Answer 9

The district youth prosecutor to ensure compliance with the OT act.

Question 10

Elements of Insanity

Answer 10

(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

• any 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 11

Who can raise the issue of insanity?

Answer 11

Defense is responsible for bringing up the issue of insanity in a trial, and the prosecution is not allowed to provide evidence of insanity even if the accused person claims that they were not in their right mind at the time of the alleged crime.

A judge may also (in exceptional circumstances), put the issue of insanity before the jury.

Question 12

Who has the burden of prove insanity?

Answer 12

Because the law assumes the defendant is sane, it is up to the defence to prove they are insane.

Question 13

What is R v Cottle (insanity)

Answer 13

The defendant is not required to prove a defence of insanity beyond reasonable doubt, but instead on the balance of probabilities.

Question 14

What is R v Clark

Answer 14

The decision as to an accused’s insanity is always for the jury to decide. A verdict inconsistent with medical evidence is not necessarily unreasonable.

Where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence that the accused did not know their act was morally wrong.

Question 15

What is M’Naghten’s Test

Answer 15

A person is considered insane if they are, 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.

Question 16

What is not included as a “Disease of the mind”

Answer 16

“Disease of the mind” does not include a temporary mental disorder, such as a blow on the head, drugs, alcohol, anaesthetic, or hypnotism.

Disease of the mind is not a medical question but a legal one for the Judge to decide.

Question 17

What is R v Codere

Answer 17

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.

Question 18

Insanity - Morally wrong test

Answer 18

The test is that the defendant knew that their acts were morally wrong – they do not need to know that they were legally wrong.

Question 19

Consequences for Mentally impaired persons

Answer 19

Under the Criminal Procedure (Mentally Impaired Persons) Act 2003, someone found unfit to stand trial or acquitted on account of his or her insanity may be detained as a special patient or special care recipient.

Question 20

Define Automatism

Answer 20

Automatism can best be described as a state of total blackout, during which a person is not conscious of their actions and not in control of them.

Question 21

What is R v Cottle (Automatism)?

Answer 21

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

Question 22

What is the Culpability for action done during Automatism?

Answer 22

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 23

What is the courts view on Automatism caused by alcohol or drugs?

Answer 23

Where automatism is brought about by a voluntary intake of alcohol or drugs the Court may be reluctant to accept that the actions were involuntary or that the offender lacked intention.

The defence is available if the defences evidence clearly raises the issue,

Question 24

What are the two types of Automatism?

Answer 24

1. Sane Automatism - eg. sleepwalking , blow to the head or drugs.
2. Insane Automatism - The result of a mental disease

Question 25

Can Automatism to be treated as insanity?

Answer 25

Weather or not a case of automatism is to be treated as insanity depends on the presence or absence of a disease of the mind.

Question 26

When can intoxication be used as a defence?

Answer 26

• Where 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 intoxication causes a state of automatism (complete acquittal)

Question 27

What did R v Kamipeli state?

Answer 27

For intoxication to succeed as a defence, all you need to establish is reasonable doubt about the defendants state of mind.

It only has to be shown that due to intoxication, they did not have the proper state of mind to be guilty.

Question 28

Define compulsion (What 3 points must be satisfied before a defence of compulsion can be used? )

Answer 28

• The person commited an offence due to threats of immediate death or grievous bodily harm from a person who is present when the offence is committed.
• 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.

Question 29

R v Joyce

Answer 29

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

Question 30

What is Police v Lavelle

Answer 30

It is ok for an undercover Police officer to provide the opportunity for someone to offend, as long as the officer did not initiate the persons interest or willingness to offend.

Question 31

Elements of Self Defence

Answer 31

• Everyone is justified in using
• in defence of himself or another
• such force as
• in the circumstances as he believes them to be it is reasonable to use.

Question 32

Self-defence - Subjective / objective tests for self-defence

Answer 32

Subjective - Did the defendant believe use of force was required

Objective - Would the use of force be considered reasonable in the circumstances

__________________________

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.

Question 33

Test for degree of force used in self-defence

Answer 33

• 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 34

What is required for a defence by Alibi?

Answer 34

• Alibi requires both time and place.
• Prosecutor must be given written notice within 10 working days after the defendant is given notice under section 20.
• They must provide the particulars of the witness or the best information possible to identify them.

Question 35

What procedures should be followed when interviewing an Alibi Witness?

Answer 35

1. Advise defence counsel of the interview and give them an opportunity to be present.
2. If they aren’t represented have an independent witness present
3. Make the statement available to defence counsel. Information that reflects credibility of the witness can be withheld.

Question 36

Define Consent

Answer 36

‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another

Question 37

What is R v Cox

Answer 37

Consent must be ‘full, voluntary, free and informed….freely and voluntarily given by a person in a position to form a rational judgement’.

Question 38

Can entrapment be used as a defence?

Answer 38

No - the judge will rule on the fairness or unfairness of the evidence obtained.

Question 39

How do New Zealand Courts deal with a defence of Automatism arising out of taking alcohol and/ or drugs?

Answer 39

The courts allow a defence of automatism arising out of taking alcohol and drugs, however, they are likely to disallow the defence where the state of mind is obviously self-induced (Dutch courage).