Short Answer Questions (PART 3)

Question 1

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

Answer 1

• 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 2

A hearsay statement is admissible in any proceeding if:

Answer 2

(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.

Question 3

Define Automatism?

Answer 3

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 4

What is the Courts view of entrapment?

Answer 4

In New Zealand the courts have rejected entrapment as a defence perse, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the accused.

Question 5

Outline the subjective/objective tests relating to Section 48 CA 1961? Accused/Defendant?

Answer 5

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.

Question 6

Subjective criteria for degree of force used?

Answer 6

1. What are the circumstances the Defendant genuinely believes to exist?
2. Do you accept that the defendant genuinely believes those facts?
3. Is the force used reasonable in the circumstances believed to exist?

Question 7

If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?

Answer 7

• 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).

Question 8

What is Dutch Courage?

Answer 8

In cases of homicide and other crimes, evidence that a person formed an intent to commit a crime and then took drink or drugs as part of the method of committing the crime (gaining dutch courage) will disqualify a defence of drunkenness or automatism.

Question 9

Where murder actually committed or attempted?

Answer 9

Section 174 applies where murder is not in fact committed. If the person incited or counselled commits murder, the parties’ provisions of S66(1)(d) will apply to the inciter or counsellor.

Where murder is attempted but not in fact committed, an inciter, counsellor or procurer will be liable as a party under S66(1)(d) to an attempt to murder under S173.

Question 10

What is Accessory after the Fact?

Answer 10

An accessory after the fact to an offence is one who, 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.

Question 11

What is Gross Neglience?

Answer 11

Before a conviction can be obtained for manslaughter where one of the sections referred to in S150A(1) the prosecution must prove a “very high degree” of negligence or “gross negligence”.

Question 12

Associated Murder Charges Include?

Answer 12

• Attempt to murder.
• Counselling or attempting to procure murder.
• Conspiracy to murder.
• Accessory after the fact to murder.

Question 13

What are the 2 distinct types of Manslaughter?

Answer 13

• Voluntary manslaughter.
• Involuntary manslaughter.

Question 14

Circumstances to consider under s16(1) of the Evidence Act 2006 include?

Answer 14

• Nature of the statement.
• Contents of the statement.
• 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.

Question 15

Self-defence and defence of another (Section 48)?

Answer 15

Everyone 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.