Self Defense, Alibi And Consent Flashcards
What legislation is covered in s48 CA61?
Answer:
It covers the justification for use of force in self-defense of oneself and other people, such force is in the circumstances, he believes there to be, is reasonable to use.
Can force be used before an actual bodily harm or threat is received?
Answer:
Yes. Maybe used to escape or breakout of a threatening or dangerous situation. The test is objective as to the initial need to use force in self-defense.
Under section 48 once the defendant decided that use of force in self defence (a subjective view of the circumstances as the defendant believed them)
S48 then introduces a test of reasonableness. What does that involve?
Answer:
It involves an objective view as to the degree and manner of the force used?
In regard to the degree of force permitted it is tested initially under following subjective criteria. What are these criteria?
Answer:
What are the circumstances that the defendant genuinely believes exist? (whether or not it is in mistaken belief)
Do you except that the defendant genuinely believes those facts?
Is the force used reasonable in the circumstances believed to exist?
If the force use is clearly unreasonable in the act of self defence What Crimes Act section is likely to arise?
Answer:
If the force was unreasonable then the liability of excessive force may arise under section 62 of the Crimes Act 1961
Who makes the decision on whether the evidence that could be the basis for self-defense under section 48 CA61 is fit to be left for the jury?
Answer:
The judge.
Self defence should be put to a jury unless it would be impossible for the jury to entertain a reasonable doubt he acted in the defense of himself or herself or another within the terms of section 48
What is meant by a preemptive strike. Use R v Ranger as the example?
Answer:
It is possible for self-defense to be raised as a defence even if the defendant has used a preemptive strike against the victim.
In the case of R v Ranger the defendant stabbed her de facto in the shoulder with sufficient force to kill him. She said at her trial that they had an argument and her de facto hit her and threatened to kill her and his son and had reached under the bed where he kept his guns.
She went to the kitchen and returned with a knife and stabbed him in the bedroom at which point he did not have a gun in his possession.
Court found that if the defendant really did think that the lives of herself and her son were in peril from the deceased, then the jury could entertain reasonable doubt as to whether a preemptive strike with a knife would be reasonable force in the circumstances.
What is defined by the term alibi?
Under section 22 Crimes act 1961 what is notice of alibi?
How many days must the notice be given after the defendant is given notice under s20?
Answer:
An alibi is a plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
Answer:
If the defendant intends to adduce evidence in support of an Albi the defendant must give a written notice to the prosecutor of the particulars of the alibi.
Answer:
10 days
What must the defendant provide the prosecutor with in relation to an alibi witness and what is the section and Act that provides this?
Answer:
The defendant must provide the prosecutor with the particulars of any alibi witnesses they intend to use in court.
The section is s22 of the Criminal Disclosure Act 2008
Section 20 requires the Court or Registrar to give the defendant written notice of the requirements of section 22 and 23. What are 2 situations when this will happen?
Answer:
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.
What does the OC case do if a defendant puts forward an alibi under section 22(1)?
Answer:
The OC case must insure 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.
This information must be provided to the prosecutor ASAP
What is the 3 step procedure when Alibi witnesses are interviewed?
Answer:
– advise the defense counsel of the proposed interview and give them a reasonable opportunity to be present
– if the defendant is not represented, endeavor to insure the witnesses interviewed in the presence of some independent person not being a member of the police
–make a copy of a witness’s signed statement taken at any such interview available to defense counsel through the prosecutor
Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
What must the defendant disclose if the defendant intends to call an expert witness during proceedings?
Answer:
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 (s23(1).
In regards to the accused and their actions what is meant by saying that they had the complainants ‘consent’ to do what they did?
Answer:
In some cases the fact that the complainant consented to the act is a complete defense.
In offenses against the person or property the general rule is that acts are criminal only when they are done against the will of the person affected or the owner of the property concerned.
Is there an offence if a person agrees to physical contact or consent to an appropriation of property or is willing that his property be destroyed or damaged?
Answer:
No. There is no offence of assault, theft or criminal damage.
