Compulsion And Necessity (defences)

Question 1

Different Types of Duress

Answer 1

(1)Compulsion- Duress by threats– A person compels a person to commit an offence by threatening them with serious harm or death
- Codified in s24
(2)Duress of circumstances (often called defence of necessity) – the defendants will is overborn by the need to avoid death or serious injury due to emergency circumstances and they respond to the threat “by committing a crime of their own choosing.”
- Not codified but preserved by s20 as a common law defence.
(3)Necessity Proper
-The defendant commits a crime because it represents a lesser harm than the alternative. It is necessary to commit an offence in order to avoid some greater harm

Necessity proper → choosing lesser of two evils → for example separating conjoined twins → one will die other will have a chance of life for example.

Third does not rise often

1st and second rise more often

Circumstances → unclear area of law and Courts dont like it

Question 2

Compulsion:

Answer 2

ØOften known as “duress by threats”
ØA General Defence
ØIs an excuse rather than a justification
ØComplete Defence- results in an acquittal if the defence is successful

Seen to be a “general defence” → not tied to any type of offence → but not a free-for-all → for serious offences you cant rely on compulsion for example

More of an excuse → saw someone committing an offence by compulsion should try to stop them → but for self defence you would not stop them for example.

It is hard to prove compulsion → but it leads to a complete acquittal.

Question 3

Essence of the defence:

Answer 3

u
Basic idea is that someone is standing over the accused threatening them with serious injury or death if they do not commit the offence .

Threatened with death to do the conduct → life preservation situation.

Question 4

Rationale for the defence:

Answer 4

“ A person faced with the threat of immediate death or grievous bodily harm may properly be excused if he chooses the lesser evil of committing the offence”
R v Teichelman [1981] 2 NZLR 64 (CA) at 66.

Teichelman → leading case for compulsion

Question 5

Akulue v R [2013] NZSC 88:

Answer 5

“[11] Those who are put under pressure to offend should show firmness of character and seek the assistance of the authorities or do whatever else is practicable. So, a high level of coerciveness and the absence of any reasonable alternative to compliance are part of the rationale for the defence

Do whatever is practicable to avoid doing the offence → is what is expected → so need a high level of coerciveness → absence of any reasonable alternative → rationale.

Ukulele → stand in front of serious threats → show firmness of character

Question 6

Section 24(1):

Answer 6

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.
Higher threshold justification → person you have committed offence against is innocent → but if person is mistaken and mistake is genuine → that the offender is also innocent as well

Question 7

Section 24(1):

Answer 7

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.
Higher threshold justification → person you have committed offence against is innocent → but if person is mistaken and mistake is genuine → that the offender is also innocent as well

Question 8

Section 24:

Answer 8

ØComplete codification of the common law of compulsion- Akulue [2013] NZSC 88
ØUnlike self-defence – the victim is innocent.
ØRequirements of the section strictly enforced.

Question 9

Akulue v R [2013] NZSC 88:

Answer 9

The NZ Supreme Court cited with approval the words of Lord Bingham from R v Hasan [2005] at [22]:
“The features of duress… incline me where policy choices are to be made, towards tightening rather than relaxing the conditions to be met before duress may be successfully relied upon.”

Question 10

s24(2) Excluded offences:

Answer 10

Defence of Compulsion not available if the accused commits the following offences:
(a)Treason (s73) or communicating secrets (s78):
(b)Sabotage (s79):
(c) Piracy (s92) and piratical acts (s93):
(e) Murder (s167, s168): and
(f) attempt to murder (s173):
(g) Wounding with intent (s188):
(h) Injuring with intent to cause GBH (s189(1)):
(i) Abduction (s208):
(j) Kidnapping (s209):
(k) Robbery (s234):
(l) Aggravated robbery (s235):
(m) Arson (s267)
Covers primary and secondary parties: Witika (1992) 9 CRNZ 272.

Absence of drug and sexual offences →

Question 11

Teichelman Elements:

Answer 11

(1) The existence of a threat to kill or cause GBH;
(2) The threat must be to kill or cause GBH immediately following a refusal to comply;
(3) The threatener must be present during the commission of the offence;
(4) The accused must commit the offence in the belief that the threat will be carried out immediately.
In addition, the accused must not be a party to an association or conspiracy (words of s24)
Elements have been recently affirmed in Hay v R [2015] NZCA 329

Selling heroin/cocaine to police officer → said he was frightened by police officer → and the Court established what the elements of offence were.

The existence of a threat to kill or cause GBH → high threshold → threat should immediately follow failure to comply → person threatening must be present otherwise cant do it immediately.

Accused must believe the threat to be carried out immediately.

First three elements objective → and third is subjective.

Cant join gang for example → then knowing you are going to join the gang you have initiation processes → cant rely on defence of compulsion → because that was an accepted duress if you were part of a unlawful association or conspiracy → being a part of unlawful association or conspiracy

Hay v R → affirmed these elements

Question 12

Burden and Standard of Proof?

Answer 12

ØAs with self defence, if the evidence (either adduced by the Crown or the defence) gives rise to a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of a defence of compulsion, the defence of compulsion becomes a live issue.
ØWhether the defence is a live issue is determined by the Judge. This requires evidence of a continuing threat of immediate death or GBH made by a person who is present while the offence is committed and so is in a position to carry out the threat then and there. (Teichelman at 67.)
ØOnce the defence of compulsion becomes a live issue, the burden of proof then falls on the prosecution to disprove the defence beyond a reasonable doubt- that is, that the accused was not acting under compulsion.

Onus falls on prosecution when live issue → prosecution must prove beyond reasonable doubt that person was not acting in compulsion.

Defence brings the issue in.

Objective part → was there a continuing threat made by person who is present → then and there → if that is established on evidence → or raised → then burden falls on prosecution.

Question 13

1. Existence of a threat to kill or
   to cause GBH- (objective):

Answer 13

uThere must be an actual threat in fact- Teichelman at 66-67.
uThe threat must be accompanied by a demand (“Do the crime or else”)- Teichelman at 67 and R v Raroa [1987] 2 NZLR 486 (CA) at 493.
uThe threat must be to kill or cause GBH- ABH is not enough- R v Maurirere [2011] NZAR 431
uThreats may be implied by actions or conduct. – R v Taiaroa [2015] NZHC 2401 at [58-59]
uA request by someone you are frightened of is not enough – Raroa at 494.

Mauriere → driving with excess breath alcohol → relied on compulsion → she had been compelled to drive by partner who had hit her in face and continued assault while driving → drive this car otherwise i will smash you and the car up → and on previous occasions → she had been subject to ongoing serious violence →

Dragged her out of car by head, punched her, threw bike at her → and the Judge did not think there was a plausible narrative where defence of compulsion could go through → so withdrew based on insufficient evidence → because he considers the threat she was facing was only ABH → injury →

She is expected to show firmness of character → so have to wait for appropriate level of harm to happen to her → then only then can she commit offence → if violence threatened with is so bad that she will have defence of compulsion.

Clear indication from Court → this is very strictly applied

Firmness of character

Threats can be found by your conduct → so draw finger across neck → usually enough to be a threat.

R v Taiaroa → nature of threat the person was facing to join a riot → threats both express and implied by subtle behavioural ways → because riot happening in prison → severity of threat high → will assume there is a threat from conduct or behaviour →

but not enough to give evidence saying really frightened by person asking them to do the offence → must be specific threat or demand

Raroa case → the above is strongly applied.

Question 14

A mistaken belief in a threat?:

Answer 14

uR v Sharma [2009] NZCA 540: whether there is a relevant threat is “simply a matter of fact. That is, a mistaken belief in the existence of a threat is not sufficient, even if reasonable – there must be a threat in fact.”
uR v Raroa – being very fearful is not enough in the absence of a threat of GBH or death if the accused fails to comply
“It is true… that a threat need not be in words for the purposes of s24 but it must be a particular kind of threat associated with a particular demand There was no evidence that either Williams or Pope had made a demand of the applicant to assist with the disposal of the bodies coupled with a threat that if he did not do so his immediate death or grievous bodily harm would result.”

Raroa → does not need to be in words → has to be type of threat associated with the demand → Williams told Raroa’s wife he will be shot, when they returned to the house → they said they wasted the narcs → and anyone else who narcd would end up the same way → threat of death → but the threat is around the narc

He took a knife for his own protection because he was a narc → when he was in back of van he said he was very frightened → Court said not evidence that they made a demand to dispose of bodies with threat if he didnt with GBH or death.

What is required → when he goes to the van → tell me what you will do to me exactly if i dont do this → but the Court accepted he was terrified → but no defence of compulsion because did not fit very strict requirements.

Specific threat → and demand does same thing

Question 15

Threat to someone else?:

Answer 15

R v Neho [2009] NZCA 299
– accused children were threatened- Court said in obiter that would suffice.

Threat to someone else → then the defence may be sustained

Question 16

2. Immediacy of threat-
   immediate Retribution (objective):

Answer 16

R v Teichelman at 67.
“It is the belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provided the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or GBH will ensue if he does not do what he is told.”

Must be compelled to commit it → only if no other options available.

Question 17

Immediacy of threat- Flexibility?:

Answer 17

R v Neho [2009] NZCA 299
Inherent Flexibility-Akulue

Akulue → recognised existence in inherent flexibility → but cant extend to someone well taken away from the situation → if person has an option of reducing the threat.

Question 18

3. Present during the commission of the offence (Objective):

Answer 18

• R v Joyce [1968] NZLR 1071
• Akulue - seeking assistance?
• The presence of associates can be enough: Neho [2009] NZCA 299
• Hay v R - Offence of continuing nature?

Question 19

4. Belief that the threat will be carried out (Subjective):

Answer 19

There must be a causal link between the specific coercive threat and the offending.
R v Teichelman:
“It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility.”

Question 20

Raroa v R– Opportunity to defuse?:

Answer 20

Court of Appeal in Raroa said:
“Whether there is a continuing threat when there is an opportunity of seeking help or protection or of escaping, is a question of fact in each case relevant to the belief of the accused at the time he claims to have acted in the way that he did under compulsion.” (emphasis added)
It is clear that “… an objective test is not open in New Zealand where the wording of s 24 specifically refers to the belief of the accused thereby requiring a subjective test”

Question 21

Hay v R [2015] NZCA 329 at [16]
refers to a “mixed subjective and objective test”:

Answer 21

“The defendant invoking the defence must have believed the threat would be carried out. This is a mixed subjective-objective test — the belief need not be entirely reasonable, but the reasonableness of the belief will be relevant to whether the belief was genuinely held.”

Question 22

5. Parties to conspiracies or associations:

Answer 22

R v Joyce. The limitation only operates when it is proved that: “the very nature of the association was such that the offender, as a reasonable man, should have been able to foresee that the association was of a kind which at least rendered it possible that at a later stage he might be made subject to compulsion.”

Question 23

Reform? Law Commission:

Answer 23

“… some defendants, particularly victims of domestic violence, may require neither a specific threat nor the actual presence of their abuser to be coerced into offending. Experience may have taught them that the response to disobedience on their part would be severe physical retribution, so that they may offend out of general fearfulness of their abuser without the need for the abuser to make a particular kind of threat associated with a particular kind of demand. Arguably the coercive force of this fearfulness is not any less because the abuser is not actually present, if his or her ability to mete out punishment is certain.”

Question 24

Duress of circumstances and Necessity

Answer 24

Not standard tactics → no threat from a person → duress of circumstances → a person is responding to circumstances and has difficulty complying to law as a result of those circumstances → not from the person but from circumstances (the threat) → not threatened by person to commit crime but circumstances.

Question 25

Types of duress:

Answer 25

(1) Duress by threats (Compulsion) - codified in s24 - stand over tactics.
(2) Duress of circumstances (often called defence of necessity).
uThe accused is caught up in emergency circumstances.
uParallel to duress by threats except the defendants will is overborn by the need to avoid death or serious injury due to emergency circumstances and they respond to the threat “by committing a crime of their own choosing.”

Question 26

Duress by Circumstances not codified – preserved by s20:

Answer 26

Defence of duress by circumstances is preserved as a common law defence by
s 20.
S20 “All rules and principles which render any circumstances a justification or excuse for any act or omission, or a defence to a charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.”

Question 27

Compare to “Necessity ‘proper’ ”:

Answer 27

uThere may be another common law defence of “necessity ‘proper’”.
u
uThe defendant commits a crime because it represents a lesser harm than the alternative. It is necessary to commit an offence in order to avoid some greater harm.
uLesser of two evils.

Question 28

Duress by Circumstance:

Answer 28

uExcusatory defence.
uComplete defence.
uDifficulty of compliance with the law in emergencies.
uCompulsion comes from the circumstances rather than a person.

If you succeed then it is a complete defence → comes from circumstances not a person.

Question 29

Examples Of Duress of Circumstances:

Answer 29

• Mother with no money for food, steals from the supermarket to feed her children
• Man breaks into a holiday home as a sudden snowstorm approaches in an isolated area
• Surgeon reattaches a limb to an unconscious patient without the usual patient consent
• A man is driving his wife (in labour) to hospital at 2am. He drives through a red light as he realises the baby is coming.

Question 30

Rationale: Thomas Hobbes, Leviathan Quote:

Answer 30

“ If a man by the terror of present death, be compelled to do an act against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory; yet a man would reason thus, If I do it not, I die presently; if I do it, I die afterwards; therefore, by doing it there is time of life gained; Nature therefore compels him to the fact.”

Self preservation → Better to die later then now.

Question 31

Rationale:

Answer 31

R v Perka [1984] 2 SCR 232:

“ Rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.”

R v Hutchinson → broke into shed and destroyed some property → destroying property was not force → destroyed because felt it was a danger to public health.

Question 32

Necessity got off to a bad start:

Answer 32

uR v Dudley and Stephens (1884) 14 QBD 273

Defence did not get off to a good start → R v Dudley Stephens → in that instance people got stuck in lifeboat after shipwrecked → killed and ate cabin boy and if they didnt would die.

Duress of circumstances → rejected on basis of policy → does not justify preying on weak →

This defence is ran in conjunction with self defence.

Question 33

Attorney-General v Leason HC, 31 August 2011:

Answer 33

In a free and democratic society governed by the rule of law, the existence of which the citizens of this country are justifiably proud, such vigilante justice actions cannot be countenanced. All citizens who live in this country, including the defendants, enjoy and have the privilege of its benefits on the basis that we all comply with its laws and the rule of law. Legitimate protest is always protected, but it must be carried out within the proper legal framework.

Leason →

Question 34

Southwark London BC v Williams and Anderson [1971] Ch 734:

Answer 34

“if hunger were once allowed to be an excuse for stealing it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass no one’s house would be safe. Necessity would open a door which no man could shut.. The plea would be an excuse for all sorts of wrong doings.”
The courts must, for law and order, take a firm stand and hope that the distress of the hungry and homeless will be relieved by the charitable and the good.

uStarted to emerge as a defence in relation to traffic offences, prison escapes and used as a rationale for legal abortions.
uNow recognised as a defence in England, Australia, Canada and New Zealand.

Question 35

Elements of the defence- Kapi v Ministry of Transport (1991) 8 CRNZ 49 (CA):

Answer 35

R v Hutchinson [2004] NZAR 303 at [34]:
1.A genuine belief formed on reasonable grounds of imminent peril of death or serious injury.
2.Circumstances in which the accused has no realistic choice but to break the law.
3.Breach of the law must be proportionate to the peril involved.

Question 36

Court of Appeal in Hutchinson added….

Answer 36

(4) A need to establish a nexus between the imminent peril of death or serious injury and the choice to respond to the threat by unlawful means.

Question 37

Limitations on the Defence:

Answer 37

1. The threats must not be from a person
2. The threat must not be the result of a lawful decision
3. Not available to murder or attempted murder

Question 38

1. The threat must not come from
   a human agent:

Answer 38

uIf the threat stems from another person, then the accused must rely upon s24.
uPolice v Kawiti [2000] 1 NZLR 117
uHocking v Police.

Kawiti → Said there was no other option, she was drinking → raised defence of necessity, suffering unbearable pain of being assaulted → Court said no duress of circumstance because threat arose from other person → why they did not adduce evidence that if you leave shoulder dislocated

Question 39

Akulue [2013] NZSC 88:

Answer 39

To the extent that s 24 expresses the elements of the defence of compulsion in respects which differ from the current common law, it might be thought to have “altered” the defence. And to the extent of the resulting differences, it might be thought that the common law is “inconsistent” with s 24. On either basis, it follows that the common law defence of compulsion is not preserved by s 20.

Question 40

Was this necessary?:

Answer 40

Kevin Dawkins: On the one hand s 24 is limited to specific types of threats – not the defendant’s generalized fear of a dangerous person: “Yet on the other, when it comes to the availability of any common law defence of duress, s 24 is effectively recast so as to cover ‘fear’ cases and to exclude the preservation of such a defence under s 20.”
uThis means that those who face a threat from a person but do not meet the strict provisions of s24 - are afforded no defence under the common law either.

Question 41

Hocking v Police at [13]:

Answer 41

“The section can have no application in a situation where the person threatened is not in a position to defend himself or herself by force, and resorts to some other means of defence. If that other means is unlawful, for a reason other than it involves a use of force, then any relief from the criminal consequences of that means of defence must be found either in the defence of compulsion under s24, or the common law of duress of circumstances or necessity. If that might be thought to give rise to gender bias in the law of self defence, that is not able to be avoided by applying s48 to circumstances to which it is, on plain wording, inapplicable.”

Question 42

Friend v Police (2006) 23 CRNZ 319:

Answer 42

Defendant collided with another vehicle whilst trying to escape 5 angry men who had kicked and hit his car
Defendant sought to rely upon defence of duress of circumstances.
Defence failed because basis of the charge was caused by an error of judgement in pulling out into the intersection.

Question 43

Discrimination?

Answer 43

uIf the legal requirements for the defence of duress by threats and the defence of duress by circumstances are drawn in such a way that women are effectively denied either defence in the one situation where they might offend under compulsion is that indirect discrimination on the grounds of sex?
uConvention on the Elimination of all forms of Discrimination Against Women, Article 2.
uBill of Rights Act 1990, s 19 – freedom from discrimination

Question 44

2. Defence not available where the
   threat is the result of a lawful decision.

Answer 44

Hutchinson [2004] NZAR 303:
“In a democracy, members of society expect each other to abide by the law laid down by Parliament and to respect and comply with decisions of judicial or administrative bodies required to resolve disputes. Dilution of that expectation risks undermining the Rule of Law.”

Question 45

3. Availability for murder?:

Answer 45

uR v Dudley and Stephens
uRe A (Conjoined Twins) [2001] 1 WLR 480, per LJ Brooke

Question 46

1. Imminent Peril of Death or serious Injury:

Answer 46

(1) Does the concept of imminence equate to the concept of immediacy?
(2) Is there a distinction between imminence of the risk arising and the imminence of the expected infliction of harm?
R v Hutchinson- CA declined to determine these questions but did seem to favour the interpretation that “imminent” should mean “immediate.”
R v Neho?

Question 47

Imminence?:

Answer 47

In Attorney- General v Leason the Court thought the real issue was whether the defendant could have objectively acted in some other way to avoid committing the crime.
[82] “A key aspect of the defence is, therefore, that it will not be available if a defendant has a realistic law-abiding alternative available to him or her. In my view, the concepts of imminence and immediacy merely add to that objective analysis.”

Question 48

2. There must be no realistic choice but to break the law:

Answer 48

uThat is there must be no other legal means of defusing the threat- so if there is a realistic opportunity for the defendant to defuse the threat in some other law-abiding manner (even it is expensive) then they must do so.
uThis is a matter It’s not clear whether this is an objective question or a genuine belief so long as it is based on reasonable grounds
uEaston v Police [2013] NZCA 98 – at [8] – objective approach taken

Question 49

3. Proportionality:

Answer 49

uIn Police v Kawiti the Court cited Simester & Brookbanks as suggesting that proportionality is decided by asking whether “a sober person of reasonable firmness, sharing certain characteristics of the defendant, would have responded in a like manner.”
uJulia Tolmie - proportionality is not concerned with the overbearing of the defendant’s will but with the balancing of harms- that is, the choice to criminally offend is no worse than the harmful threat you’re seeking to avoid.

Question 50

4. Nexus:

Answer 50

uThere must be a causal connection between the peril a person faces and the decision to break the law. That is, the person’s will was overborne by the circumstances they found themselves in.
uHutchinson - The Ct said, even if it did accept that the accused had a genuine and reasonable belief of imminent peril of death or serious injury, that was no evidence that the immediate peril acted on his mind at the time when he committed the offences so as to overbear his will and require him to commit the offence.”

Question 51

Successful examples of the defence:

Answer 51

uPolice v Anthoni [1997] DCR 1034
uU v R [2011] NZCA 241

Question 52

The possibility of a necessity defence in addition to duress of circumstances: Necessity “proper”:

Answer 52

Re A (Conjoined Twins) per Brooke LJ
uThe act is needed to avoid inevitable and irreparable evil
uNo more should be done than is reasonably necessary for the purpose to be achieved
uThe evil inflicted is not disproportionate to the evil avoided

Question 53

AG v Leason, HC, 31 August 2011:

Answer 53

u
“necessity” properly so-called, is concerned with the avoidance of the greater harm or the pursuit of some greater good. This is also sometimes known as “lesser-evils” necessity. The second variety, duress of circumstances, concerns the difficulty of compliance with the law in emergencies.

Question 54

AG v Leason:

Answer 54

The difference, in short, turns on whether an individual’s will was overborne. Where a defendant’s “will is not overborne and there is no crisis requiring an immediate response, but the defendant makes a considered and rational decision which involves deliberately committing what would usually be an offence, in order to prevent the future occurrence of a greater harm” the defence of necessity will need to be employed by a defendant in order to avoid culpability for his or her actions.