Defences involving other people

Question 1

Explain Section 24 Compulsion:

Answer 1

A person who commits an offence under compulsion by threats of immediate death or GBH from a person who is present is protected from liability if they believe that the threats will be carried out and they are not party to any association or conspiracy.

Question 2

Immediacy and presence required for compulsion:

Answer 2

The threats of death or GBH must be immediate and from a person present at the time.

However, different standards may suffice where women and children act under threats

Question 3

Is a ‘mistake’ available as a defence?

Answer 3

Except in cases where proof of intent is unnecessary, mistake or ignorance is available as a defence.

E.g. mistaking cannabis seeds as tomatoes

Question 4

Explain entrapment:

Answer 4

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.

Question 5

Can Entrapment be a defence in NZ?

Answer 5

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.

Question 6

How would the court assess fairness regarding ‘entrapment’ by law enforcement?

Answer 6

In assessing fairness, the court will examine the reason the defendant was targeted and the way in which the agent was involved in the initiation of the offending activity,

Question 7

Explain Section 48 - Self Defence

Answer 7

Everyone is justified in using, in defence of himself or another, using such force as, in the circumstances as he believes them to be reasonable

Question 8

Explain the subjective/objective test regarding Self Defence:

Answer 8

Subjective - Deciding that force is required

Test of reasonableness

Objective - The degree and manner of the force used

Question 9

What is the testing criteria for the degree of force used in Section 48 - Self Defence:

Answer 9

• What are the circumstances that the defendant genuinely believes exist (whether it is mistaken belief or not)
• Do you accept that the defendant genuinely believes those facts
• Is the force used reasonable in the circumstances

Question 10

Who decides the evidential threshold for self defence?

Answer 10

The judge decides whether evidence that could be the basis for self-defence 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.

Question 11

What was shown regarding self defence in R v Ranger (preemptive)

Answer 11

if the defendant really did think the lives of herself and her son were in peril because of the deceased it could be reasonable that a pre-emptive strike with a knife would be reasonable force

Question 12

Define ‘alibi’

Answer 12

“The plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere”

Question 13

Explain Section 22 of the Criminal Disclosure Act - Notice of Alibi

Answer 13

If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor.

Within 10 working days

Question 14

What must be included in the written notice to the prosecutor regarding an defendants alibi?

Answer 14

• Name and address of the witness
• If name and address 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

Question 15

What is the O/C responsibilities regarding a defendant’s alibi?

Answer 15

Ensure a QHA and active charges report is prepared on the witness

Make inquiries to confirm or rebut evidence in support of the alibi

Question 16

What is the procedure for interviewing an alibi witness (only if one is requested by Prosecution)

Answer 16

1. Advise the defence counsel of the interview and give them a reasonable opportunity to be present
2. If the defendant is not represented, endeavour to ensure they are interviewed in the presence of some independent person not being a member of the Police
3. Make a copy of the witness statement available to defence counsel through the prosecutor.

Question 17

What must the defence disclose if they are intending to call an expert witness?

Answer 17

• Any brief of evidence to be given or any report provided by that witness or
• If brief or report is not available, a summary of evidence to be given and conclusion of any report
• Disclosed at least 10 working days before the date fixed for the defendants trial

Question 18

What is consent?

Answer 18

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

Question 19

How can consent be conveyed?

Answer 19

R v Cook - Consent must be real, genuine or true consent and may be conveyed by words or conduct or both

Question 20

What are the 5 guidelines of consent regarding assault?

Answer 20

1. Everyone has the 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 breach of the peace or in a prize fight.
5. It is uncertain to what extent any person has a right to consent to being put in danger of death or bodily harm by the act of another.