Defences Involving Other People Flashcards
Discuss compulsion or duress
Compulsion or duress is the act of compelling a person to do something against their will. When the compulsion relates to a criminal offence, the law offers protection from prosecution in some cases.
A person acts under ‘compulsion’ if they commit an offence having been compelled to do so by threats of immediate death or grievous bodily harm to themselves or another person present when the offence is committed.
These threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way. (belief must be genuine)
Section 24, ca 1961 - compulsion
(1) Subject to the provisions of this section, 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.
- Belief must be genuine
- Threats must be immediate and from a person present.
R v Joyce (presence)
The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed.
Mistake
Bona fide Mistake or ignorance as to matters of fact is available as a defence in cases except where proof of mens rea is unnecessary.
That is if they did not possess intent and intent is part of offence then that can be a defence
Entrapment
In NZ the courts have rejected entrapment 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 law enforcement agents have generated the offending.
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
Case law for entrapment
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 persons interest or willingness to so offend.
Discuss self defence
Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, is reasonable to use.
Initial need to use force is subjective and can be used before any bodily harm or threat is received, merely to escape from or break out of a threatening or dangerous situation.
The degree of force permitted is tested initially under the following subjective criteria:
• • What are the circumstances that the defendant genuinely believes exist (whether or not it is a mistaken belief)?
• • Do you accept that the defendant genuinely believes those facts?
• • Is the force used reasonable in the circumstances believed to exist?
Discuss excessive force
Once the defendant has decided that use of force was required (subjective), section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
Force used must only be for the purpose of defending the defendant or another person. If unreasonable then excessive force may arise.
Pre emotive strike
It is still possible depending on the circumstances to raise self defence if a pre-emptive strike has been used.
Alibi
The plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere.
The defendant must give written notice to the prosecutor of the particulars of the alibi (within 10 working days after the defendant is given notice – If the defendant pleads not guilty or is a child or young person making their first appearance in the youth court. )
Notice must include: name and address of alibi or information to locate them
The o/c case must enquire to confirm or rebut evidence in support of the alibi. They should provide this and the witnesses QHA prosecution report to the prosecutor as soon as practicable.
Should not interview alibi witness unless prosecutor requests to do so. – Advise defence counsel of interview. Ensure independent witness to interview. Provide copy of interview to defence counsel
Expert evidence
If the defendant intends to call an expert witness they must disclose this to the prosecutor. (includes brief of evidence or reports, must be disclosed at least 10 days prior to trial)
Discuss consent
Someone accused of an offence may defend their actions by saying that they had the complainants consent to do what they did. In some cases consent is a defence as acts are only criminal when they are done against the till of the person affected.
Consent must be understood and voluntarily given. Consent is a persons conscious and voluntary agreement to something desired or proposed by another. R v Cox – consent must be full, voluntary, free and informed.
If the act itself is criminal, it cannot be made lawful because the person whom it is against consents to it. No person can licence another to commit a crime.
Some sections of the crimes act exclude consent as a defence. E.g. indecency offences and consent to death.
No one has a right to consent to their death or injury likely to cause death.
Burden of proof: It is always up to the prosecution to prove that someone did not consent but it appears that this onus only arises if there is evidence from which consent can reasonably be inferred.
Discuss compulsion or duress
Compulsion or duress is the act of compelling a person to do something against their will. When the compulsion relates to a criminal offence, the law offers protection from prosecution in some cases.
A person acts under ‘compulsion’ if they commit an offence having been compelled to do so by threats of immediate death or grievous bodily harm to themselves or another person present when the offence is committed.
These threats must be operating on their mind at the time of the act and be so grave that they might well have caused a reasonable person placed in the same situation to act in the same way. (belief must be genuine)
Section 24, ca 1961 - compulsion
(1) Subject to the provisions of this section, 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.
- Belief must be genuine
- Threats must be immediate and from a person present.
R v Joyce (presence)
The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed.
