7. Defences Involving Other People Flashcards
What is the legislation/defence regarding compulsion
s24
A person who 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 whereby he is subject to compulsion
What is required to rely on a defence of compulsion
s24
- the belief in the threat must be genuine
- the threats of GBH/harm must be “immediate” and from a person present at the time
- they must not be a party to any association or conspiracy involved in carrying out the threats
R v Joyce
The Court of Appeal decided that the compulsion must be made by a person who is present when the offence is committed
What is held regarding mistake as a defence
“except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence”.
There is no obligation on the part of a defendant to prove that they had reasonable grounds for the belief they had
eg. growing cannabis from seeds thought to be tomato seeds
What is the definition of entrapment
Occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that the person can be prosecuted
Can entrapment be used as a defence
No, instead it is up to the trial judge to exclude evidence that would operate unfairly against the defendant
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 legislation regarding self-defence
s48
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
What is the subjective/objective test around the degree of force permitted for self defence
- 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
Who decides whether evidence is the basis for self defence
Judge
Can a pre-emptive strike be raised as self defence and what is the relevant case law and example of this
Yes it can
R v Ranger
Defendant stabbed de facto in shoulder killing him after an argument in which he hit her and threatened to kill her and her son and reached under the bed where he kept his guns
She got a knife and stabbed, he did not have any gun in his possession at the time but there was evidence he stored guns under the bed
What is the definition of “Alibi”
The plea in a criminal charge of having been elsewhere at the material time, the fact of being elsewhere
If the defendant intends rely on an alibi what notice is required to be given
The defendant must provide the prosecutor with written notice of an alibi particulars within 10 working days after the defendant is given notice under s20
Under s22(3)(a) of the criminal disclosure act, in respect of giving notice of an alibi witness, what information must be included in the notice
- name and address of the witness
- if name and address is not know at the time of notice, any matter known by the defendant that might be of material assistance in finding that witness
What procedure should be followed if the prosecutor request the OC to interview an alibi witness
- advise defence counsel of the proposed interview and give them reasonable opportunity to be present
- if defendant is not represented endeavour to ensure the witness is interviewed in the presence of some independent person, not a police member
- make copy of witness’s signed statement taken viable to defence counsel thought the prosecutor. Information reflecting on the credibility of the alibi witness can be withheld s16(1)(o)
