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.
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.
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 or Entrapment
If the elements of an offence include a requirement of intention, knowledge, or subjective recklessness, a person can be acquitted if there was no such state of mind at the time of the actus reus even though that mistake of fact may not have been based on “reasonable grounds”.
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. Exclusion may be considered where law enforcement agents have generated the offending. In R v Liu, the court described the position as follows:
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. Of itself, entrapment does not necessarily give rise to an abuse of process.
However, if the entrapment is unfair, it may result in the court excluding the evidence, using its inherent jurisdiction to prevent an abuse of process ‘by the avoidance of unfairness’ …
Police v Lavelle [1979] 1 NZLR 45
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.
s48 of the Crimes Act 1961 - Self-defence and defence of another
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.
Subjective 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?
Pre-emptive strike
The Court found that “if this defendant did really think that the lives of herself and her son were in peril because of the deceased, enraged after the struggle, might attempt to shoot them with a rifle near at hand, then it would be going too far, we think, to say that the jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife would be reasonable force in all the circumstances.”
Relevant legislation is s20 - 22 of the Criminal Disclosure Act 2008. Alibi
22 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
Exceptions to consent
In R v Cox the Court found that consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”
Consent 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 their death or injury likely to cause death.
- 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.
- 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.
