Defences Involving Other People Flashcards
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.
*** Compulsion or Duress- the belief must be genuine
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. The defendant must have genuinely believed the threats and must not be a party to any association or conspiracy involved in carrying out the threats.
*** Entrapment
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is
not a substantive defence in the sense of providing a ground upon which the
defendant is entitled to an acquittal.
*** Self Defence or Defence of another
Section 48 of the Crimes Act 1961
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.
*** Section 48 Subjective and Objective Test
Once the defendant has decided that use of force was required (a subjective
view of the circumstances as the defendant believed them), Section 48 then
introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.
*** Degree of force used
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?
Alibi
The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere
*** Written notice of alibi now
required
Until 1973 a defendant was free to leave producing an alibi until they were
actually giving evidence. This meant that it was difficult, if not impossible,
for the prosecution to rebut the evidence.
Under s22 of the Criminal Disclosure Act 2008, the defendant must provide
the prosecutor with the particulars of any alibi witness they intend to use in court.
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.
*** You cannot use the defence of consent to assault in the following cases
- Aiding suicide
- Criminal actions
- Injury likely to cause death
- Bodily harm likely to cause a breach of the peace
- Indecency offences
- The placing of someone in a situation where they are at risk of death or bodily harm.
*** Provide 3 “Guidelines” in respect of consent?
- 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 their death or injury likely to cause death.
What is the procedure when alibi witnesses are interviewed?
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.
- Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
- If the accused is not represented, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
- 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).
If the Defendant intends to call an expert witness during proceedings, what must they disclose to the Prosecution?
• Any brief of evidence to be given or any report provided by that witness, or If that brief or any such report is 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 14 days before the date fixed for the defendants hearing or trial, or within any further time that the court may allow (s23(1))
What is the Courts view of 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 accused.
Compulsion definition under section 24
(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.
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 of the Criminal Disclosure Act 2008.
