Short Answer 4

Question 1

Section 163 CA61

Answer 1

No one is criminally responsible for the killing of another by the influence on the mind alone

Except for wilfully frightening a child under the age of 16 or a sick person,

Nor for the killing of another by any disorder or disease arising from such influence

Except by wilfully frightening any such child as aforesaid or a sick person

Question 2

What is the required state of mine for 167(b)

Answer 2

• intended to cause GBH to the deceased
• knew the injury was likely to cause death
• was reckless as to whether death ensued or not

Question 3

You cannot use the defence of consent to assault in the following cases

Answer 3

• 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

Question 4

R v Blaue

Answer 4

Those who use violence must take their victim as they find them

Question 5

A hearsay statement is admissible in any proceedings if

Answer 5

The circumstances relating to the statement provide reasonable assurance that the statement is reliable and

Either
- the maker of the statement is unavailable as a witness or
- The judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness

Question 6

Define automatism

Answer 6

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

Question 7

Sane automatism

Answer 7

The result of somnambulism (sleepwalking) a blow to the head or effected by drugs

Question 8

Insane automatism

Answer 8

The result of mental disease

Question 9

What is the courts view on entrapment

Answer 9

They 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 accused

Question 10

Subjective and objective test relating to section 48

Answer 10

Once the accused has decided that use of force was required – a subjective view of the circumstances as the accused believed them –

Section 48 then introduces a test of reasonableness which involves an objective view as to the degree in manner of force used

Question 11

R v Lavelle

Answer 11

It is permissible for undercover offices to merely provide the opportunity for someone who is ready and willing to attend, as long as offices did not initiate the persons interest or willingness to so offend

Question 12

What is the procedure when alibi witnesses are interviewed

Answer 12

The OC case should not interview and alibi witness unless the prosecutor request them to do so. If an interview as requested, follow this procedure

– advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present

– If the accused is not represented, endeavour to ensure that the witness is interviewed in the presence of some independent person not being a member of the Police.

– Make a copy of a witness sign statement taken at any such an interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witnesses can be with held under section 16(1)(o)

Question 13

If the defendant intends to call an expert witness during proceedings what must they disclose to the prosecution

Answer 13

– Any brief of evidence to be given or any report provided by that witness, or

– if that belief 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 14 days before the date fixed for the defendants hearing or trial, or within any further time that the courts allow - 23(1)

Question 14

General rule regarding intoxication

Answer 14

In the past intoxication was considered to be no defence to a criminal charge and indeed and aggravating factor rather than a mitigating factor. The general rule has been that intoxication maybe a defence to the commission of an offence

– where the intoxication causes a disease of the mind so to bring section 23 insanity of CA 61 into affect

– 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

– with intoxication causes estate of automatism complete - acquittal

Question 15

Define alibi

Answer 15

An alibi is the plea in a criminal charge of having been elsewhere at the material time, the fact of being elsewhere

Question 16

Define infanticide

Answer 16

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 effects of giving birth to that or any other child,

– or by reason of the effects of lactation,

– or by reason of any disorder consequent upon childbirth or lactation,

– to such an extent that she should be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable for imprisonment of imprisonment not exceeding 3 years

Question 17

Degree of force under self defence

Answer 17

The degree of force permitted as tested initially under the following subjective criteria
– what are the circumstances of the defendant genuinely believes exists whether or not it is mistaken belief
– do you accept that the defendant genuinely believes those facts
– is the force use reasonable in the circumstances believe to exist

Question 18

Voluntary manslaughter

Answer 18

Mitigating circumstances, such as a suicide pact, reduces what would otherwise be murder or manslaughter, even though the defendant may have intended to kill or cause GBH

Question 19

Involuntary manslaughter

Answer 19

Covers those types of unlawful killings 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 GBH

Manslaughter then includes culpable homicide that
– does not come with in section 167 or section 168
– comes with in section 167 and 168, but is reduced to manslaughter because of the killing was part of a suicide pact as defined in section 180(3) of CA61

Question 20

Required state of mind for section 167B

Answer 20

To show the defendant state of mind meets the provisions of section 167B you must establish that the defendant

– intended to cause bodily injury to the disease
– no the injury was likely to cause death
– was reckless as to whether death ensued or not

Question 21

167 murder defined

Answer 21

Culpable homicide is murder and 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 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 aforesaid means to cause such bodily injury as for said to one person, and by accident or mistake Kills another person, though he does not mean to hurt that person killed

D) the offender has any unlawful object does an act that he knows is likely to cause death, and thereby Kills any person, though he may not desire that his object should be affected without hurting anyone

Question 22

168 for the definition to murder

Answer 22

One – culpable homicide is also murder and each of the following cases whether the offender mains or does not mean death to ensure, or knows or does not know that death is likely to ensue

– if he means to cause GBH for the purpose of facilitating the commission of any offence mentioned in subsection two of the section, or facilitating the flight or avoid the tension of the offender upon the commission or attempt to commission there of, for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury

– if he administers any stupefying all overpowering thing for any of the purchases aforesaid, and death ensues from the effects there of

– If he by any means woefully stops the breath of any person for any of the purposes of four said, and death ensues from such stopping of breath