Homicide Defences Flashcards
(132 cards)
1
Q
Where are matters of justification and excuse contained?
A
In part 3 of the Crimes Act 1961
2
Q
What is the general rule as to justification?
A
Under S20 CA 61, all the common law defences are retained
3
Q
What is the exception to the general rule of justification?
A
This is so long as they are not inconsistent with the Crimes Act or any other enactment.
4
Q
What is the definition of justified?
A
It means that the person is not guilty of an offence and is not liable civilly.
5
Q
What does “protected from criminal responsibility” mean?
A
That the person is not guilty of an offence but civil liability may still arise.
6
Q
Where are defences for children set out?
A
In sections 21 and 22 of the Crimes Act 1961.
7
Q
Section 21 – What is the title?
A
Children under 10.
8
Q
Are children under 10 liable?
A
No child under 10 is liable to be convicted of an offence
9
Q
Section 22 – What is the title?
A
Children between 10 and 14
10
Q
Are children between 10 and 14 liable?
A
Not UNLESS he knew either that the act or omission was wrong or that it was contrary to law.
11
Q
How to determine the correct age of a child?
A
Shall be at the commencement of the relevant anniversary of the date of his birth
12
Q
What does a child under the age of 10 have?
A
An absolute defence to any charge brought against them.
13
Q
What do you have to establish if the offender is under 10?
A
You still have to establish whether or not they are guilty.
14
Q
What is the test of knowledge in addition to? In regards to children between 10-14.
A
The test of knowledge is in addition to the mens rea and actus reus requirements.
15
Q
What if the test of knowledge is not met?
A
Then the child cannot be criminally liable for the offence.
16
Q
Who is the onus for the test of knowledge on?
A
It is on the prosecution to establish hat the accused knew the act or omission was wrong or contrary to law.
17
Q
What does the test of knowledge have to prove?
A
That the child must know their act was wrong but need not understand that it was seriously wrong.
18
Q
What is the prosecution required to provide for evidence of age?
A
They are required to produce evidence of age and provide evidence that identifies the defendant as the person named in the certificate.
19
Q
What is the relevant age?
A
Is that of the child at the time they committed the offence, not their age when they appeared in court.
20
Q
What is the general rule for children under the age of 14?
A
All child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14.
21
Q
How can a child under 10, who is an offender of serious crime, be dealt with?
A
Consider having the child and family dealt with as a care and protection matter. The circumstances are then reported to Oranga Tamariki for the attention of Care and Protection Co-ordinator.
22
Q
When a child aged 10-13 is alleged to have committed murder or manslaughter (Cat 4 offences) how are they dealt with?
A
They are usually dealt with under the youth justice provisions of the OT Act.
Charges are filed in the District Court, first appearance is at the Youth Court and then it will be automatically transferred to the High Court for trail and sentencing.
23
Q
What can children be sentenced to for a charge of murder or manslaughter?
A
They can be sentenced to imprisonment and detained in a Child, Youth Family residence under the custody of the chief executive of the ministry of social development.
24
Q
If child offenders are declared in need of care and protection, what can be done?
A
They can be detained in a Care and Protection Residence under the custody of the Chief Executive of the Ministry of Social development.
25
How are children aged 14-16 years dealt with when charged with murder or manslaughter?
The process is the same as those aged 10-13. The charges are filed in the District Court, the first appearance takes place in the Youth Court and then automatically transfers to the High Court for trial and sentencing.
26
Can young people be imprisoned?
They can be imprisoned for murder, manslaughter, cat 3 and 4 offences for which the max penalty includes imprisonment for life or for at least 14 years. They can also be detained in a Child, Youth and Family youth residence.
27
Can you prosecute children aged 12 and 13?
Yes, but only for serious offences where it is punishable by 14 years to life imprisonment or where the child is 12 or 13, is a previous offender (for a serious offence) and the offence is punishable by 10 years to 14 years imprisonment.
28
What is defined in Section 23 of the Crimes Act 1961?
Insanity.
29
Under the definition of insanity, what is presumed?
It is presumed that everyone is sane at the time of doing or omitting any act until the contrary is proved.
30
When does a person avoid conviction on the grounds of insanity?
An act that is done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable of;
- Understanding the nature and quality of the act or omission
- Knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
31
What does a person have to be incapable of to be acquitted on the grounds of insanity?
- Understanding the nature and quality of the act or omission
- Knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
32
Is insanity before or after the time he did or omitted the act sufficient?
It may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.
33
Who is to raise the issue of insanity?
The defence is to raise the issue of insanity and the prosecution is prohibited from adducing evidence of insanity EVEN if the accused has sought an acquittal because of state of mind not amounting to insanity.
34
If a person poses a risk to the public (insanity) what can be done?
There is a procedure by which they can become the subject of a “restricted patient” order under the mental health act.
35
What can a judge do in regards to insanity?
A judge may put the issue of insanity before the jury. However, if the defence do not choose to plead insanity it would only be in exceptional circumstances that this would be put to the jury.
36
What are the practical implications on the crown in relation to insanity?
It is not proper for the crown to call evidence of insanity, but any relevant evidence in the hands of the crown should be offered to the defence, leaving it to the defendant to put up the plea of insanity if they wish to do so.
37
Even if insanity is not called as a defence, what may the judge do upon conviction?
The judge may still commit a person to a hospital or secure facility or INSTEAD of passing a sentence, order that person be treated as a patient under the mental health act or be cared for as a care recipient under the Intellectual Disability Act.
38
What must the court be satisfied of to make orders for the defendant to be treated as a patient under the mental health act etc?
They must be satisfied that the offenders mental impairment requires the compulsory treatment or compulsory care of the offender either in the offenders interest, or for reasons of public safety.
39
What if there is strong evidence of insanity?
A person can be acquitted of a charge, even if they or their counsel have not put up the defence of insanity, if there is strong evidence to indicate the defendant did commit the alleged offence but was insane at the time.
40
In circumstances where the judge puts the issue of insanity to the defence, what must they do?
In summing up before the jury deliberates its verdict, the judge must notify the jury that if it decides to acquit the defendant it must be specific as to whether this is on the grounds of the defendants innocence or their insanity.
41
What is allowed Under s20 of the CP(MIP) Act?
It allows the case to be concluded more quickly and there is now the possibility of entering the verdict “Not guilty on account of insanity” by consent.
42
Who is the burden of proof of insanity on?
Because the defence pleads insanity and because the law assumes that the defendant is sane, it is up to the defence to prove that the defendant is insane.
43
What is the standard of proof for insanity?
Because the burden of proof is on the defence, the standard of proof is lower and they need only prove it on a balance of probabilities. That is, the jury need only think it is more likely that the defendant is insane.
44
What is insanity a question of?
It is a legal question, not a medical one.
45
What can insanity be used as a defence for?
Any offence punishable by imprisonment.
46
What is the question of whether or not the defendant is legally insane addressed by?
Evidence from medical experts called by the defence and the crown.
47
What are the M’Naghten rules used to establish?
Whether or not a defendant is insane
48
What are the M’Naghten rules based on?
A persons ability to think rationally so that if a person is insane they were 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
49
What is the definition of “A disease of the mind”?
It is said to be a “term which defies precise definition and which can comprehend mental derangement in the widest sense.
50
What was found to be sufficient to be included as “a disease of the mind”?
A manic episode of bipolar affective disorder with psychotic features was a disease of the mind
Epilepsy could also be included
51
Does there have to be damage to the brain for it to be included as “a disease of the mind”?
It can be a disease of the mind whether or not there is any damage to the brain or other physical organ, the law is only concerned with the mind
52
What is included in the definition of “mind”?
The mental faculties of reason, memory, and understanding. It can be permanent or temporary, of short or long duration, curable or incurable.
53
What is not included as a “disease of the mind”?
A temporary mental disorder caused by some factor external to the defendant, such as a blow to the head, the absorption of drugs, alcohol or an anaesthetic or hypnotism
54
What is a “disease of the mind” a question of?
It is a question of law for the jury and not a medical one
55
Do you have to prove a “disease of the mind”?
Medical witnesses are permitted to say whether they regard a disorder to be a “disease of the mind” as well as testifying to the causes and symptoms of the condition but this is not final.
56
What does it mean by “nature and quality”?
It is to be read as a composite expression and not as separate terms distinguishing its physical and moral aspects.
57
What is the test around the defendant knowing the act was “morally wrong”?
The test is whether the defendant knew that their acts were morally wrong - They do not need to know they were LEGALLY wrong. If they cannot understand that their act is morally wrong, then they lack the rational understanding.
58
If someone is found unfit to stand trial / acquitted based on his / her insanity, what can the courts do?
They can detain the person as a special patient or a special care recipient OR if they determine that it is not necessary, they can order the immediate release of the person.
59
In reaching the decision whether to detain a person on mental health grounds, what must the court consider?
It must consider all the circumstances and may hear further medical evidence concerning whether release or alternative measures are safe in the public interest.
60
Can the public interest override the judges decision to detain a person on mental health grounds?
Yes it may, the Attorney general may direct that the defendant be held as a patient or a care recipient.
61
What is automatism?
A state of total blackout, during which a person is not conscious of their actions and not in control of them.
“An act which is done by the muscles without any control by the mind”
62
What is the culpability for automatism?
Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct.
63
What is included in automatism according to R v Bratty?
A spasm, a reflex action or a convulsion, or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from a concussion or whilst sleepwalking
64
What else can automatism be caused by?
A medical condition such as a brain tumour, epilepsy, arteriosclerosis or by consumption of alcohol or drugs.
65
Will the court accept automatism brought about by the voluntary intake of alcohol or drugs?
The court will be reluctant to accept that the actions were involuntary or that the offender lacked intention.
The courts indicate that convincing evidence is necessary to support it, and only in very rare cases will it be enough for a person to say that they did not know or cannot remember what happened, or that they had a blackout.
66
Can automatism induced by drink or drugs be brought to issue by the defence?
If the evidence can clearly raise the issue, yes.
67
What is sane automatism?
The result of sleepwalking, a blow to the head or the effects of drugs
68
What is insane automatism?
The result of a mental disease.
69
How can automatism be treated?
Certain types can be treated by the law as cases of insanity, and the legal test of insanity applies.
Whether or not it will be treated will depend on the presence or absence of a disease of the mind.
70
What is important to note in relation to automatism?
That automatism may lead to a finding of insanity, even if the defendant has not raised this defence and has pleaded automatism alone.
If the condition is of such a nature as to warrant a finding of insanity, that issue may have to be put to the jury whether or not a defence has been raised by the defendant.
71
If the defendant produces sufficient evidence that intent was lacking because they were in an autonomous state, then what must happen?
They must be acquitted as the crown will have failed to prove the existence of the mental element of the offence.
72
Can automatism be raised for strict liability offences?
Yes, they can raise it as an offence however because it is a strict liability offence, the defence must establish it to the balance of probabilities.
73
When are the courts likely to accept the defence of automatism?
They are likely to allow defence of automatism to offences of basic intent only.
74
When are the courts likely to disallow the defence of automatism?
They are likely to disallow the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.
75
What is the general rule for intoxication as a defence to the commission of an offence?
- Where intoxication causes a disease of the mind
- 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)
76
What was made clear in the case of R v Kamipeli in relation to intoxication?
That, for intoxication to succeed as a defence, all you need to establish is reasonable doubt about the defendants required state of mind at the time of the offence.
77
What does not need to be shown in relation to intoxication?
That the defendant was incapable of forming the mens rea, merely that, because of their drunken state, they did not have the proper state of mind to be guilty.
78
When can intoxication be used as a defence?
To any crime that requires intent. Any offence that does not require intent requires the defendant to prove a total absence of fault.
79
When can intoxication not be used as a defence to homicide and other crimes?
If there is 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, this will disqualify a defence of drunkenness or automatism.
80
What is the defence of intoxication used to establish?
That the defendant did not have the requisite intent to carry out the offence
81
Can intoxication be used as ignorance of law?
If it is used to try to establish ignorance of the law, it will not establish a defence.
82
What are examples of strict liability offences where intoxication would not work as a defence?
Applying force to another person and
Fighting with a person in a public place
83
If the defendant claims they wouldn’t normally punch someone, the drink made them do it, is this permitted?
These claims in mitigation are not permitted in cases where the offence is one of violence or danger to any person and the alcohol or drugs were voluntarily consumed.
84
Can intoxication be used for mitigation?
Yes.
85
What is not an excuse for offences committed?
Ignorance of law, as shown in S25
86
If a child is ignorant to law, what does this mean?
Where a child does not know their act was contrary to law, they will not be liable for any offence.
87
What is “compulsion or duress”?
The act of compelling a person to do something against their will.
88
When does a person act under compulsion?
If they commit an offence having been compelled to do so by threats of immediate death or grievous bodily harm to themselves or another person present when the offence is committed.
89
What must the threats be doing to count as “compulsion or duress”?
The threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way.
90
When will Section 24, defence by compulsion apply?
A person who commits an offence under compulsion by threats of immediate death or GBH from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and he is not a party to any association or conspiracy where he is subject to compulsion.
91
What must the defendant have done for compulsion to apply?
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.
92
When must the threats be to account for the defence of compulsion?
They must be “immediate” and from a person present at the time.
93
When does the immediacy criteria for compulsion differ?
In circumstances where women and children are under threats.
94
When is mistake available as a defence?
Except in cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence.
95
What does a mistake have to be?
It has to be an honest mistake, but it it doubtful whether honest adds anything.
96
Is there an obligation on the defendant in regards to mistake?
There is no obligation on the part of a defendant to prove that they had reasonable grounds for the belief that she claims honestly to have had. The reasonableness or otherwise of that belief may nonetheless be important as an index of whether or not it was honestly held.
97
Is “Entrapment” a defence?
In NZ, the courts have rejected entrapment as a defence, preferring instead to rely on the discretion of the judge to exclude evidence that would operate unfairly against the defendant.
98
When does “entrapment” occur?
When an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
99
What does “entrapment” not give?
It does not necessarily give rise to an abuse of process
100
When may entrapment evidence be excluded?
If the entrapment is unfair, it may result in the court excluding the evidence, using its inherent jurisdiction to prevent an abuse of process by the avoidance of unfairness
101
In assessing fairness for entrapment what will the court examine?
It will examine the reason the defendant was targeted, and the way in which the agent was involved in the initiation of the offending activity.
102
What do the courts look to distinguish between when it comes to entrapment?
They distinguish between circumstances where officers have provided an opportunity to those predisposed to commit certain offences and situations where officers have initiated, encouraged or stimulated offences by a person who would otherwise have been a non-offender in a general senses, and who was not in any event ready and available to commit the offence.
103
What happens in circumstances where police over-step the line?
Where the police overstepped the line between proper detection and improper inducement of crime, the discretion to exclude the police officers evidence should be exercised.
104
What is another example of a police officers evidence being excluded?
A police officer having a close personal relationship with the defendant to the point they would have done anything for the officer. Evidence was excluded on the grounds that it was unfairly obtained due to the close personal relationship.
105
Section 48 - What is the title?
Self defence
106
What is covered in Section 48 being self defence?
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.
107
When may force be used for self defence?
The initial need to use force for self-defence is subjective. Force may possibly be used before any actual bodily harm or threat is received, merely to escape from or break out of a threatening or dangerous situation.
108
Once the decision to use force in self defence is decided, what test is introduced?
The test under Section 48 - a test of reasonableness which involves an objective view as to the degree and manner of force used.
109
What are the questions that help form the subjective criteria for self defence ?
- What are the circumstances that the defendant genuinely believes exist (and 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?
110
What may force only be used for?
The purpose of defending the defendant or another person
111
What if the force is clearly unreasonable?
Then they may be liable for excessive force under S62 of the crimes act
112
What happens with evidence of self defence in a jury trial?
The judge decides whether it is sufficient to be left to the jury.
113
When does evidence of self defence go to the jury?
Self defence SHOULD be put to the jury unless it would be impossible for the jury to entertain a reasonable doubt that the defendant had acted in the defence of him or herself or another within the terms of s48
114
Does the deceased have to had struck first for self defence to apply?
No, it can apply even if the defendant has used a pre-emptive strike against the deceased
115
In R v Ranger what was found in regards to self defence?
The court found that if this defendant did really think that the lives of herself and her son are in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive stride with a knife would be reasonable force in all the circumstances.
116
What is required when it comes to an alibi witness?
A defendant must provide the prosecutor with the particulars of any alibi witness they intend to use in court. Written notice of an alibi is to be given by the defendant within 10 working days after the defendant is given notice under Section 20.
117
What is the requirement of the Court Registrar under S20?
They need to provide the defendant written notice of the requirements of Section 22 and 23
118
When is the court registrar required to submit a written notice of the requirements of s22 and 23 to the defendant?
- 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
119
Whenever a defendant puts forward an alibi under S22(1) what must the OC case ensure?
That a prosecution report and an active charges report are prepared on the witness.
120
What details should be provided to the OC case for the alibi witness?
The witnesses name and address or any information that might provide material assistance in finding that witness
121
What is the procedure when alibi witnesses are interviewed?
1. Advise defence counsel of the proposed interview and given them a reasonable opportunity to be present
2. If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police
3. Make a copy of a witnesses 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.
122
If the defendant intents to call an expert witness during proceedings, what must they 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 is to be given and the conclusions of any report to be provided
123
When must the defendant disclose information pertaining to expert witnesses?
Within 10 days before the date fixed for the defendants trial, or within any further time that the court may allow.
124
Is consent a defence to any actions?
In some cases, the fact that the complainant consented to the act is a complete defence. In offences 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.
125
Whats an example of consent being a complete defence?
If a person agrees to physical contact or consents to an appropriation of property or is willing that his property be destroyed or damaged, there is no offence of assault, theft or criminal damage.
126
What is the definition of consent?
Consent must be understood and given voluntarily.
Consent is a persons conscious and voluntary agreement to something desired or proposed by another
127
What was found in R v Cox in relation to consent?
The court found that consent must be full, voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement.
128
Further to R v Cox, what was found in R v Cook?
That to be effective, consent must be “real, genuine or true consent, and may conveyed by words or conduct or both”
129
If the act itself is criminal, can it be made lawful due to consent?
No, it cannot be made lawful merely because the person consents to it. No person can license another to commit a crime, and so in such cases it is not necessary for you to prove that there was no consent.
130
Are there sections that specifically exclude consent as a defence?
Yes, specifically those relating to indecency. A notable example being consent to death.
131
What are the guidelines to consent regarding an assault?
1. Everyone has a right to consent to a surgical operation
2. Everyone has a right to consent to the infliction of force not involving bodily harm
3. No one has the right to consent to their death or injury likely to cause death
4. No one has the right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons
5. It is uncertain to what extent any person has a right to their being put in danger of death or bodily harm by the act of another.
132
What is the burden of proof for consent ?
The court reaffirmed that it is always up to the prosecution to prove that someone did not consent but it appears that this onus only arises if there is evidence from which consent can reasonably be inferred.
