Defences Involving Other People

Question 1

Defence of Compulsion

Section 24 CA61

Answer 1

(1) Subject to the provision 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.

Question 2

Compulsion

Note

Answer 2

• Belief must be genuine.

- Immediacy and presence required.

Question 3

Presence

R v Joyce

Answer 3

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.

Question 4

Mistake

Answer 4

Except in cases where proof of mens rea is unnecessary, genuine mistake or ignorance as to matters of fact is available as a defence.

Often said there needs to be an honest mistake.

E.g. growing cannabis plants believing they were tomatoes.

Defence of mistake is a denial of intent.

Question 5

Entrapment

Answer 5

NZ courts have rejected entrapment as a defence, preferring instead to rely on the decoration of the trial judge to exclude evidence that would operate unfairly against the defendant.

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

If the entrapment is unfair, the court may exclude the evidence. In assessing fairness, the court will examine the reason the defendant was targeted, and the way the agent initiated the offending activity.

Question 6

Entrapment

Note

Answer 6

Courts distinguish between providing an opportunity for the “predisposed” offenders to commit certain offences [v] situations the officers initiated, encouraged or stimulated offences.

____

Police Over-Stepping the Line:
- Undercover officer developed “intense personal relationship” and the subject would do anything the officer said.

Question 7

Entrapment

Leading Precedent

Police v Lavelle

Answer 7

Police v Lavelle
It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officer did not initiate the person’s interest or willingness to offend.

Question 8

Self Defence

Section 48 CA61

Answer 8

s48 Self Defence and Defence of Another
Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances he believes them to be, it is reasonable to use.

Question 9

Self Defence

Note

Answer 9

Initial need to use force is subjective e.g. to escape out of dangerous situation.

_____

Subjective and Objective Test:

• Use of force in circumstance is required (Subjective)
• Test of reasonableness to the degree and manner of force used (Objective)

_____

Degree of force used:
Degree of force permitted is tested initially under the following subjective criteria:
- What are the circumstances that the defendant genuinely believe exists
- Do you accept the defendant genuinely believes those facts
- Is the force used reasonable in the circumstances believed to exist.

_____

The Judge to decide on evidential threshold:
The Judge decides whether the basis of self defence is left to the jury.

_____

Excess Force:
s62 CA61.

Question 10

Alibi

Definition

Answer 10

Chambers Dictionary - The plea in a criminal charge of having been elsewhere at the material time.

Question 11

Alibi

Section 22 Criminal Disclosure Act

Answer 11

s22 Alibi (being elsewhere at the time offence committed)

(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 sub(1) must be given within 10 working days after the defendant gives notice under s20.
(3) Without limiting subsection (1)
(a) the name and address of the witness, or if not known, any matter that may assist in finding the witness.

Question 12

Alibi

Notes

Answer 12

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.

_____

OC Must prepare QHA and active charges report for Alibi witness and forward to prosecutor. OC to conduct enquiries to confirm or rebut evidence in support of the alibi.

Question 13

Procedure when alibi witnesses are interviewed

Answer 13

Only interview alibi witnesses unless requested by prosecutor:

1. Advise defence counsel and give reasonable opportunity to be present.
2. If the defendant is not represented, endeavour to ensure witness is interviewed in presence of some independent person not part of the Police.
3. Make copies of the signed statement available to Defence and Prosecution.

Question 14

Expert Evidence

Answer 14

Disclose to Prosecutor:

• Brief of Evidence (BOE) by expert
• If BOE not available, a summary of report
• Disclosed at least 10 working days before the trial, or within a time the courts allow.

Question 15

Consent

Answer 15

1. Everyone has a right to consent to surgical operation.
2. Everyone has a right to consent to infliction of force without causing bodily harm.
3. No one has the right to consent to their death or injury likely to cause death.
4. 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 another.

_____

Defence to consent requires the act consented is understood and consent is given voluntarily.
_____
People are 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.