DEFENCES - compulsion Flashcards
WHAt section is complusion
s24
what offences is complusion for
certain ones under 24(2) for those excluded
how do nz courts look at complusions
adopt a highly stringent approach to compulsion under s25, teichelmen describes it as choosing the lesser evil by commititng the offence
what case sets out the four requirements for compulsion
- threats of a partciualr kind e.g. death or GBH
- the threats must be to kill or inflcit that harm immediatley if demand not met
- threats need to be from a person who is present when the offfence is committed
- d must commit the offence under the belief the threat will be carried out
the nature of the threat must involve
death or GBH (more than just inflcition on health or comfort) nothing less will suffice
the type of threat must be
implicit or explicit
must b specific and a general fear of harm is not sufficnet
the actual threat must be
objectively assessed, actual threat not a mistaken belief
previously menacing conduct or mistaken compulsion will not siffice
is the threat immediate
needs to be carried out literally immediately after the refusal to comply and the reason behind this is iof it is not immedaite then there is time to seek help or consider alternative options than the offence
was the threat from someone who was present at the time of the offnece
like immediacy is a strict requirement, if the person making the threat is not pressent when the offece is is being commiteed it is unlikely the defnece will succeed
what is the three types of reuqiremnets of threat
- subjective
- reasoablenes
- opputunity to esacpoe
what is the subjective requirment of the beleif of threat
d must honest believe they will be executed
what is the reasonableness requirment of the beleif of threat
there is no requirement for the belif to be reasoable, howveer an unreosnable beleif may be less credible
what is the oppurtunity of escape requirment of the beleif of threat
if d had a chance to escape and did not take it, this may indicate a lack of geniune belief in the immedaicy of the threat
what is the no complusion by association/conspriacy rule
d cannot argue complusion if youre part of any conspriacy or assocaition whereby he/she is subject to cimplusion, unless the association is not volentary or the association is lawful
what is the criticism on complusion
Simester and Brookbanks argue that if the impact on the accused’s mind is the focus, it shouldn’t matter whether they believe the action will happen immediately or after some time, as long as they believe it will occur.
things to consider when looking at complusion is
if alternative arrgament would change the outcome and not that if this issue returns to the SC they may change their maind and make a statement on what the law should be
r v raroa facts
r was appraoched by 2 men who asked him to dispose of a body, 2 men threatned anyone who narked on them, didnt specfically threaten r
r v raroa
r v raroa issue
was there an actual threat presnet
r v raroa held
no there needs to be an actuak threat present, it doesnt matter if d had mistaken belief of the threat, s24 NARROW
R V neho facts
n steal to reduce debt to mongrel mob, did bc she was threatened to cimmit these crimes by beating the daylights out of her and SA her children
r
r v neho issue
was the immediacy / presnece requiremt met
r
r v neho held
no the presence requirmet wanst met, needs to be a stand over type of sitution
r v
r v akulue facts
z threaten to kidnap family in nigeria if he doenst smuggle drugs into nz
r v akulue issue
can the presnece/immedaicy requirements be reinterpreted
r
r v akulue held
presnece/immedaicy could psosibly be reinterpreted but sc doemst follow canada wide approach
whole basis of complusion
stripped of free will
what is the criticums for complusion
- almost never works
