Defences Involving Other People Flashcards
S24 CA
24 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 or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion.
Compulsion belief required:
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 cause greatest bodily harm. The defendant must have genuinely believe the threats and must not be a party to any association or conspiracy in bowling carrying out the threats.
Immediacy and presence:
Presence Case Law:
Threats must be immediately and from someone present at the time:
R v Joyce
The Court of Appeal decided that the compulsion must be made by person who is present when the offence is committed
Threats must be immediately and from someone present at the time:
R v Joyce
The Court of Appeal decided that the compulsion must be made by person who is present when the offence is committed
Defence of mistake:
- except in cases with proof of mens res is unnecessary, bona fide mistakes or ignorance is two matters of fact is available as a defence.
Often said that. It needs to be an honest mistake. No obligation to prove they had reasonable grounds for the belief.
Eg accidentally grew cannabis instead of tomatoes.
Entrapment
Entrapment occurs when an agent of a law enforcement body deliberately causes a person to commit an offence, so that the person can be prosecuted.
In New Zealand courts have rejected entrapment as the defence per se, preferring instead to rely on the discretion of the trial judge to exclude evidence that would operate unfairly against the defendant .
Predisposition to commit the offence / two types of entrapment:
Two types of circumstances:
1) provided an opportunity to those predispose to commit offences.
2) circumstances where police officers have initiated, encouraged or stimulated offences to be committed by a person who would not otherwise have been an offender in a general sense.
Entrapment- leading precedent - case law:
Police V Lavelle
It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, so long as the officers did not initiate the person’s interest or willingness to so offend.
S48
Self Defence and defence of another:
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
(
Self-defence, what is the subjective/objective test?
- Subjective is the decision that force was required.
Objective is a reasonableness test as to the degree and manner of force used.
What criteria are used to review the force used:
- what are the circumstances that the defendant genuinely believes exist?
-Do you accept that the defendant genuinely believe those facts?
-As the force used reasonable in the circumstances believed to exist?
S22 - Criminal Disclosure Act
S22 Notice of alibi:
(1) If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi.
(2) The notice under subsection (1) must be given within 10 working days after the defendant is given notice under section 20.
(3)
Without limiting subsection (1),—
(a)the notice under subsection (1) must include 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; or
(b) if the name or the address is not included in the notice, the defendant must have, before giving the notice, taken all reasonable steps, and after giving the notice continue to take all reasonable steps, to ensure that the name and address is ascertained; or
(c)if the name or the address is not included in the notice, but the defendant subsequently discovers the name or address or becomes aware of any other matter that might be of material assistance in finding the witness, the defendant must as soon as practicable give written notice of the name, address, or other information, as the case may require; or
(d) if the defendant is notified by the prosecutor that the witness has not been traced by the name or at the address given, the defendant must as soon as practicable give written notice of any other matter known to the defendant that might be of material assistance in finding that witness or, on subsequently becoming aware of any such matter, give written notice of it as soon as practicable.
Procedure when alibi witnesses are interviewed:
1) advised the defence council of the proposed interview and give them 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 the witnesses sign statement taken at any such interview available to defence council through the prosecutor. Any information that reflects on the credibility of alibi witness can be withheld under.S16(1)(o)
What must the defendant disclose regarding expert evidence to the prosecutor?
- 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 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 fixed date for the defendant trial or within any further timeframe that the court may allow
Consent - general rule:
And offences against the personal property the general rule is that act a criminal only when they are done against the world of the person affected or the owner of the property concern
Consent - exceptions:
- offences relating to indecency
- One cannot consent to one’s death
Assault - consent 5 guidelines:
1) everyone has a right to consent to surgical operation.
2) everyone has a right to consent to the inflection of force not involving bodily harm.
3) no one has a right to consent to the death or injury likely to cause death
4) no one has the right to consent bodily harm in such a manner as to amount to breach of the peace, or an app prize fight or other exhibition calculated to collect together disorderly persons.
5) it is unclear to what extent any person has a right to consent to them being put in danger of death or bodily harm by the act of another.
