Defences involving other people

Question 1

Define compulsion or duress

Answer 1

The act of compelling a person to do something against their will

Question 2

Sec 24 - Compulsion
(Legislation)

Answer 2

A person who commits an offence
under compulsion by threats of immediate death or GBH
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

Question 3

In relation to an offence committed, when is a person acting under compulsion?

Answer 3

If they commit an offence having been compelled to do so by threats of immediate death or GBH to themselves or another person

The 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

Question 4

R v Joyce (Compulsion)

Answer 4

The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed

Question 5

The threats of death or GBH must be:

Answer 5

Immediate
and from a person present at the time

Question 6

What is the view of mistakes as a defence in NZ?

Answer 6

Except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matter of fact is available as a defence

Example: old lady growning cannabis thinking they are tomato seeds

Question 7

What is the view of entrapment as a defence in NZ?

Answer 7

Entrapment is rejected as a defence and instead the judge will rule on the fairness and unfairness of the evidence

Question 8

Police v Lavelle (Entrapment)

Answer 8

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

Question 9

Sec 48 - Self Defence and Defence of Another

Answer 9

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

Question 10

Describe the subjective/objective test in relation to use of force?

Answer 10

The initial need to use force is a subjective test.

Once the defendant has decided that the use of force was required (subjective test), sec 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used

Question 11

The degree of force permitted is tested initially under what subjective criteria?

Answer 11

• what are the circumstances that the defendant genuinely believes exist
• do you accept that the defendant genuinely believes those facts
• is the force used reasonable in the circumstances believed to exist

Question 12

Who decides whether there is evidence of self-defence?

Answer 12

The judge

Question 13

Define Alibi

Answer 13

The plea in a criminal charge of having been elsewhere at the material time

The fact of being elsewhere

Question 14

What is the length of time that the defendant must give notice of the particulars of an alibi?

Answer 14

10 days

Written notice of an alibi is to be given by the defendant within 10 working days after the defendant is given notice under Sec 20

Question 15

When would a court or registrar be required to give the defendant written notice under sec 20?

Answer 15

• if the def pleads not guilty
• if the def is a child or young person, when they make their first appearance in the youth court

Question 16

Define consent

Answer 16

Consent is a persons conscious and voluntary agreement to something desired or proposed by another

Question 17

What people are considered unable to give consent?

Answer 17

People 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

Question 18

What actions do not allow for a defence of consent?

Answer 18

You cannot use the defence of consent in cases involving:

• 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

Question 19

Guidelines to consent regarding assault:

Answer 19

(1) everyone has a right to consent to a surgical operation

(2) everyone has a right to consent to the infliction of force not involving bodily harm

(3) No one has a right to consent to their death or injury likely to cause death

(4) No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons

(5) 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

Question 20

Procedure when alibi witnesses are interviewed

Answer 20

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).

Question 21

If the defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor:

Answer 21

• 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 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow (s23(1)).

Question 22

Pursuant to sec 22(3)(a) of the Criminal Disclosure Act, the notice under sub (1) must include:

Answer 22

The name and address of the witness or,
if the name and address is not known to the defendant when the notice is given,
any matter known by the defendant that might be of material assistance in finding that witness