Compulsion Flashcards
Where in the Crimes Act is the defence of compulsion located?
The defence of compulsion, duress by threats is located in section 24
What are the elements of section 24 as elaborated on by R v Teichelmen
In order to successfully raise the defence of compulsion the following elements must be met:
Threat of death or GBH
Threat must be carried immediately after refusal
Threatening individual must be present
Belief that threat will be carried out immediately
Not associated with conspiracy
Section 24 codifies duress by threats for primary offenders, is this extended to secondary parties?
No. Section 24 is codified for both primary and secondary offenders.
The common law defence of compulsion is extinguished. No broad defence is available, only the narrow one outlined in 24.
What are the components of the Teichelmen element of threat of death or GBH?
Threat must be death or GBH accompanying a demand to do something. The threat can be implied verbally or through ones conduct.
Request is not enough, it must be a threatened imperative.
How does R v Raroa illustrate the element of threat of death of GBH?
In R v Raroa, two individuals ask the accused to help them dispose of bodies. The accused complied but raised the defence of compulsion the grounds that they had a loaded shotgun and knew where his family was.
Court rejected the defence as they did not expressly threaten him with harm when demanding him to help them.
Being scared is not enough.
How does R v Teichelmen itself illustrate the element of threat of death and GBH?
In R v Teichelmen, accused sold drugs to undercover officer but raised compulsion as the interlocutor was an intimidating guy who had in the past threatened him and his family.
Court rejected this defence as in the context of this crime, there was no express threat accompanying the demand.
Being intimidated is enough
What does R v Neho demonstrate with regards to element of threat of death or GBH?
When threatened with harm to do a demand, suggesting an alternative implies a lack of compulsion.
Women in Neho suggests an alternative scheme when threatened, court took it as something other than compulsion.
What are the parameters of the Teichelmen element of threat must be immediate?
The threat must be carried out immediately or immediately afterwards the demand has been refused, say five minutes.
What does R v Neho say with regards to the elements of immediacy?
In Neho, the women was not under an immediate threat when engaging in her scheme.
Her watchers may have been inside the store, outside in the car park, etc. But unlikely that they would have harmed her there or taken her to a place to deal with her.
The threat of sexual violation of her children was considered too remote to be immediate.
What is the English position on the element of immediacy?
Threat does not have to be immediate. English case where women giving false testimony was found to be under compulsion as the individual threatening her was in the dock.
Despite being unable to do something immediately, the court found that his threat was having an operative effect on her.
This has been criticised
What are the parameters of the Teichelmen element that the threatening individual must be present?
They must be physically present at the time of the threat and when the threat was threatened to be carried out.
What does R v Joyce say with regards to the Teichelmen element that the threatening individual must be present?
In Joyce, the threatening individual was outside with a gun and therefore not physically present. Court found the threat to not be physically present.
What does R v Neho say with regards to the element that the threatening individual must be present?
Associates of the threatening individuals constitute physical presence of the individual who actually lodged the threat.
What are the parameters of the Teichelmen element of honest belief of threat?
R v Raroa affirms this element as a subjective test. If the accused believed in the threat and lack of alternatives to escape threats
Is there an objective appraisal in the element of honest belief of threat?
Subsequent rulings have left this element in confusion.
Hay v R introduces a subjective-objective test where the belief need not be reasonable but the belief itself must reasonably conceived. The issue is that this functions similar to subjective test laid out in Raroa.
R v Neho introduces an objective standard. What would the reasonable person should have done with regards to alternatives?
R v Sowman affirms Neho.
However, the law remains a subjective test, the courts have perversed this standard
