7. Defences involving other people Flashcards
Section 24 - Compulsion
Person who commits offence under compulsion by threats of immediate death or GBH from a person present is protected from criminal responsibility if he believes threats will be carried out.
What is compulsion/duress?
3 points
the act of compelling a person to do something against their will.
Threats must be operating on their mind at the time of the act and be so grave that a reasonable person placed in the same situation to act in the same way.
The threats must be “immediate” and from a person present at the time.
R v Joyce explains ‘presence’
R v Joyce
The compulsion must be made by a person who is present when the offence is committed.
If the elements of an offence include a requirement of intention, knowledge, or subjective recklessness, can a person be acquitted if a mistake was made?
A person can be acquitted if no such state of mind at the time of the act even though that mistake may not have been based on “reasonable grounds”.
Bona fide mistake or ignorance as to matters of fact is available as a defence”
Explain Entrapment
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
If the entrapment is unfair, it may result in the court excluding the evidence.
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 defendant.
What is the leading precedent on entrapment using Police v Lavelle
Police v Lavelle
It is permissible for undercover officers to 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.
Outline Section 48 Self-defence and defence of another
EISCReam
Who decides of evidence of self defence is suitable for a jury?
Every one 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.
A judge decides whether evidence that could be the basis for self-defence under s48 of the Crimes Act 1961 is fit to be left to the jury.
Outline the subjective and objective tests relating to section 48 of the Crimes Act 1961
Outline the subjective criteria:
3 points
CA FR
Once the defendant has decided that use of force was required, Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
The degree of force permitted is tested initially under the following subjective criteria:
* Circumstances that the defendant genuinely believes exist?
* Do you accept that the defendant genuinely believes those facts?
* Is the force used reasonable in the circumstances believed to exist?
define an alibi?
As the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
Section 22 Criminal Disclosure Act - Notice of alibi
1.
2.
3.
(1) If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi.
(2) must be given within 10 working days after the defendant is given notice under section 20
(3) Notice must include
a- Name and address of witness, or anything to assist finding the witness
b- if not provided, must continue to take steps to ascertain name and address
c- once ascertained, provide it asap.
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, outline the procedure:
1 Advise defence counsel of proposed interview, give them oppertunity to be present
2. If defendant not represented, ensure independent person present.
3. Provide defence copy of statement through prosecutor.
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 - 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.
Someone accused of an offence may defend their actions by saying that they had the complainant’s consent to do what they did.
Explain consent, and what you cannot consent to:
Cox - consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”
You cannot use the defence of consent in cases involving:
− 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.
Provide guidelines in respect of consent regarding assault.
Everyone has a right to consent to :
1. a surgical operation.
2. infliction of force not involving bodily harm.
No one has a right to consent to
3. their death or injury likely to cause death.
4. bodily harm in such a manner as to amount to a breach of the peace.
- It is uncertain to what extent any person has a right to consent to their
being put in danger of death or bodily harm by the act of another.
