Defences Involving Other People Flashcards
Compulsion
Legislation
Summary
A person is protected from criminal responsibility if …
S24 CA61
A person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them that they would otherwise be killed or caused grievous bodily harm.
They must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.
Of note
Different standards may suffice where women and children act under threats.
R v Joyce
Court of appeal decision on compulsion
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.
Mistake and Entrapment
Mistake
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.
A defence of mistake is in effect a denial of intent.
Entrapment
In New Zealand the courts have rejected entrapment as a defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant.
What is entrapment?
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
Police v Lavelle
Undercover officers providing opportunity
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.
Of note
The Court of Appeal held that the undercover officers were merely providing L the opportunity to recruit (and live off the earnings of) women involved in prostitution, an activity the evidence showed he was already willing to engage in.
Self Defence
Legislation
Everyone is justified in using …
S48 CA61
Every one 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.
Of note
The test is subjective as to the initial need to use force in self-defence. Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
Evidence of self-defence is decided by the judge.
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?
Excess force
Legislation
Of note only
S62 CA61
If the force used is clearly unreasonable, then the liability of excessive force may arise
The judge decides whether evidence that could be the basis for self-defence under s48 of the Crimes Act 1961 is fit to be left to the jury. Self-defence should be put to the jury unless it would be impossible for the jury to entertain a reasonable doubt that the defendant had acted in the defence of him or herself or another within the terms of s48.
Alibi
Definition
Chambers Dictionary
The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
Alibi
Legislation
What the defendant must do …
Summary
S22 CDA08
(1) Give written notice to the prosecutor of the particulars of the alibi
(3) (a) the name and address of the witness, or if not known, any matter that may assist in finding the witness
Of note
Written notice of an alibi is to be given by the defendant within 10 working days after the defendant is given notice under section 20.
Section 20 requires the Court or Registrar to give the defendant written notice of the requirements of section 22 and 23
* if the defendant pleads not guilty, or
* if the defendant is a child or young person, when they make their first appearance in the Youth Court.
Procedure when alibi witnesses are interviewed
1 Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
2 If the defendant is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
3 Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o).
Of note
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so.
Expert Evidence
If the defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor:
- any brief of evidence to be given or any report provided by that witness, or
- if they are not available, a summary of the evidence to be given and the conclusions of any report to be provided.
- This information must be disclosed at least 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow (s23(1)).
Consent to Assault
Guidelines
- Everyone has a right to consent to a surgical operation.
- Everyone has a right to consent to the infliction of force not involving bodily harm.
- No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace
- No one has a right to consent to their death or injury likely to cause death
- It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another.
Of note
In R v Nazif the Court reaffirmed that 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.
People are considered to be unable to give their consent if they are:
- A child
- Unable to rationally understand the implications of their defence
- Subject to force, threats of force or fraud.
