7. Defences Involving Other People

Question 1

Are people protected from compulsion or duress?

Answer 1

Yes the law has provisions for this in some cases.

Question 2

What is compulsion?

Answer 2

Is when a person has been threatened to do something against their will.

Question 3

What does section 24(1) say about compulsion?

Answer 3

It says person:

• commits an offence under compulsion
• by THREATS of immediate DEATH or
• GRIEVOUS BODILY HARM
• 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 if he is not a PARTY to any association or conspiracy where is he subject to the compulsion.

Question 4

Genuine Belief must be genuine, true of false and explain this?

Answer 4

The person MUST have genuine belief of the threats and not be a party or association or conspiracy involved in carrying out of the threats.

Question 5

The person making the threat for compulsion, what are the elements that has to be presence?

Answer 5

It has to be from a person that is present at the scene at the time of the offence.

Question 6

Presence - what is the caselaw that is relevant?

Answer 6

R v Joyce

The Court decided that the person making the threat must be present when the offence is committed.

Question 7

MISTAKE and ENTRAPMENT

What is a mistake and is a defence?

Answer 7

It is only a defence where the mens rea is not necessary, a genuine mistake or ignorance as to matters of fact is available as a defence.

Question 8

Entrapment, how is it applied as a defence here in NZ?

Answer 8

Entrapment has been rejected by the Courts as a defence preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.

Exclusion may be considered where cops etc have initiated the defendant to commit a crime.

Fairness to the defendant will have to considered whether the target was to cause the defendant to offend in the circumstances.

Question 9

Pre-disposition to commit the offence, what is the caselaw and explain it?

Answer 9

R v LUI the court found that there needs to be a distinguished line between circumstances where officer 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 sense, and who was not in any event ready and available to commit the offence.

Question 10

What was found in the case R v Capner when Police overstep the line?

Answer 10

Police overstepped the line between PROPER DETECTION and IMPROPER INDUCEMENT OF CRIME. The exercise to exclude evidence should be applied.

Question 11

What is the leading precedent for entrapment?

And what was found in this case?

Answer 11

Police V Lavelle

It is permissible for undercover 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.

Question 12

The Defence of Self-Defence

what is the section and what does it say?

Answer 12

Section 48

Every one is justified in using, in self defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 13

What part of section 48 is subjective?

Answer 13

It is the initial need to apply force for self defence.

Question 14

What is the subjective objective test?

Answer 14

Once the subjective part is done then s 48 introduces the a test of reasonableness which involves an objective view as to the degree and manner of the force used.

Question 15

Degree of force used, what is the criteria of the subjective test?

Answer 15

• What are the 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?

Question 16

Why must the force be used?

Answer 16

In self defence of self or of another and it must be reasonable. It is for this purpose only that it may be used.

Question 17

Who decides if evidence that is basis be put to the jury to decide?

Answer 17

It is up to the Judge to decide if the evidence is fit to be left up to the Jury to decide self defence unless it is impossible to have the jury entertain that there was a reasonable doubt about the defendant acted in self - defence.

Question 18

Pre-emptive strike, can it be used as a defence?

Answer 18

Yes it is POSSIBLE to be raised as a defence even if the defendant has used a pre-emptive strike against the Victim.

R v Ranger - Partner stabbed her defacto after he had threatened to kill her and her son after reaching for his gun under the bed. She escaped to the kitchen grabbed a knife and returned and stabbed him.

She believed that their lives were in danger. The jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a kinfe would be reasonable force in all the circumstances.

Question 19

Alibi - what is the definition ?

Answer 19

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

Question 20

What is the section that relates to adduce an alibi under the Criminal Disclosure Act 2008?

Answer 20

Section 22

Question 21

Explain what this section says about Alibi?

Answer 21

1 - must give written notice to prosecutor of the particulars

2 notice must be given 10 working days after the defendant has given notice under section 20

3 without limiting sub 1:

a) notice must include - name address of witness, if not known to def any matter known by the defendant that might be of material assistance in finding witness OR

b) if the name is not given the defendant MUST have before giving the notice TAKEN all reasonable steps, and after the notice CONTINUE to take all reasonable
steps, to ensure the name and address is ascertained.

c) if the NAME or address is not included in the notice but the defendant subsequently discovers the name or address or becomes aware of any other matter that might be material assistance in finding the witness, the defendant must as soon as practicable give written notice of the name, address or other information as the case may require. OR
d) If the defendant is notified by prosecution that the witness has not been traced by the name or address given, the defendant must as soon as practicable give written notice of any other matter known to the defendant that might be of material assistance in finding that witness or ON subsequently becoming aware of any such matter give written notice of it as soon as practicable.

Question 22

What is section 20 of Criminal Disclosure Act 2008?

Answer 22

This requires the Court or Registrar to give the defendant notice of the requirements set out in sections 22 and 23 of the Act.

IF the defendant has pleaded NOT GUILTY or

The Defendant is a child or young person when they make their first appearance in the Youth Court

Question 23

As O/C of a case where an alibi has been raised what enquiries must you complete?

Answer 23

• Complete prosecution report with QHA and active charges are prepared for the Witness.
• Make inquires to confirm or rebut evidence in support of the alibi. THis must be provided to the prosecutor as soon as reasonably practicable.

Question 24

When should you interview an alibi witness?

Answer 24

You should not interview them UNLESS the prosecutor requests you to do so.

Question 25

What is the procedure once an interview on an alibi witness?

Answer 25

Steps

1 - Advise the defence counsel of the proposed interview and give 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 witness’s signed statement at any such interview available to defence through the prosecutor. ANY information that reflects the credibility of the alibi witness can be with held under section 16(1)(o)

Question 26

What must you do with information that reflects the credibility of the alibi witness?

Answer 26

With hold it under section 16(1)(o)

Question 27

Under section 23(1) of the Criminal Disclosure, what does this entail? (expert)

Answer 27

It relates to a defendant intending to call an expert witness during the proceedings must disclose to the prosecutor:

• brief of evidence given or any report provided by that witness OR
• if that brief or any such report is not available a SUMMARY of the evidence and the conclusions of any report to be provided
• It must be disclosed withing 10 working days before the date fixed for the defendant’s trial, OR within any further time that the court may allow.

Question 28

Summarize CONSENT in relation to law?

Answer 28

• In law there are some offences that consent is a defence because the victim or other person permitted.

Question 29

What are examples of the consents regarding assaults?

Answer 29

1. Everyone has a right to surgical operation
2. Eveyone has a right to consent to the infliction of force not involving bodily harm
3. No one has a right to their death or injury likely to cause death.
4. No one has a 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 consent to their being put in danger of death or bodily harm by the act of another.

Question 30

What is the burden of proof in relation to CONSENT?

Answer 30

In R v Nazif, the Court reaffirmed that it is always upto the prosecution to prove that the Victim was not consenting BUT it appears that this onus only arises if there is evidence from which consent can reasonably be inferred.