Short Answer 51-60 Flashcards
- 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
- What was held in R v Clancy?
“The best evidence as to the date and place of a child’s birth will normally be provided by a person attending at the birth or the child’s mother … Production of the birth certificate, if available, may have added to the evidence but was not essential.”
- Define Automatism
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.
- What is “Sane” and “Insane” Automatism?
Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:
- Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs
- Insane automatism - The result of a mental disease
- What is the Courts view of entrapment?
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 accused.
- Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961
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 and manner of the force used
- What was held in 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.
- What is the procedure when alibi witnesses are interviewed?
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is 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 the witness is 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 defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o).
- If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?
- 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 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))
- General rules regarding intoxication;
In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rule has been that intoxication may be a defence to the commission of an offence:
- Where the 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 the intoxication causes a state of automatism (complete acquittal).
