Defences involving other people

Question 1

Explain a defence under compulsion, and give the Act/section

Answer 1

Sec 24(1), CA61

A person is protected from criminal responsibility if they have been compelled to commit the offence by threats of immediate death or GBH by someone else at present.

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.

Of note

Different standards may suffice where women and children act under threats (R v Hudson - pg88)

Question 2

Entrapment and Mistake

Answer 2

Entrapment: NZ courts reject entrapment as a defence, however evidence may be excluded if it was unfair on the defendant.

Mistake: Except in the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence. (R v Wood pg90 )

Question 3

What is the leading case law on entrapment? What was held in relation to entrapment vs detection of crime?

Answer 3

Police v Lavelle -

Police offered opportunity for offender to engage in activity he was already predisposed to committing. Police did not incite, encourage or stimulate the offences.

Question 4

Self defence - act/section

Answer 4

Sec48 CA61

Everyone is justified to use force in defence of himself or another, if the force used in reasonable in the circumstances.

Question 5

What are the three subjective considerations when considering if use of force in self defence was appropriate?

Answer 5

• 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.

Question 6

A judge decides whether evidence is fit to be left to a jury in matters of self defence.
When would a judge not leave the evidence for a jury to decide?

Answer 6

When it would be impossible for a jury to entertain reasonable doubt that the defendant acted in self defence, or defence of another.

Question 7

What was held in R v Ranger?

Answer 7

That a pre-emptive strike in self-defence is reasonable in circumstances where it can be shown that a reasonable person feared for their safety or safety of another.

Question 8

What is the definition of Alibi - ‘Chambers dictionary’

Answer 8

Chambers Dictionary

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

Question 9

What must defence do if wanting to give evidence of an alibi?

act/section

Answer 9

S22 Criminal Disclosure Act 2008

(1) If defence wants to give evidence of an alibi, they must give written notice to the prosecutor of the particulars of the alibi
(3) (a) Notice must include the name and address of the witness, or if not known, any matter that may assist in finding the witness

Question 10

What must defence do under sec 22 (2) of CDA2008?

Answer 10

Must give written notice of the particulars of the alibi within 10 days after being given notice under sec 20.

Question 11

What is required to be given under sec 20 CDA2008, and when is it required to be given?

Answer 11

Court must give defence written notice of requirements under sec 22 and 23 when:

• defendant pleads not guilty
• defendant is child/young person at 1st appearance in youth court

Question 12

what is the procedure for interviewing alibi witnesses?

Answer 12

• It should not be done unless requested by prosecutor
• provide defence counsel reasonable opportunity to be present during interview
• Ensure an independent person who is not Police is present during interview
• Provide a copy of the interview to defence through the prosecutor. Information about the credibility of the witness can be withheld under sec 16(1)(o).

Question 13

What must defence disclose to prosecutor when they intend to call an expert witness?

Answer 13

• Brief of evidence or report being provided by the witness
• If no brief/report available then a summary of their evidence.
• Info must be disclosed 10 days before trial date.

Question 14

What was held in R v COX and R v COOK?

Answer 14

R v COX - consent must be …..

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

Question 15

Consent vs criminality - explain

Answer 15

If the act itself is criminal, it cannot be made lawful because a person consents to it

eg - it is no defence the person consented to death.

Question 16

What are the 5 guidelines in relation to consent regarding assault?

Answer 16

• 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 bodily harm in such a manner as to amount to a breach of the peace
• No one has a right to consent to their death or injury likely to cause death
• 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 17

What was held in R v NAZIF?

Answer 17

It is always up to the prosecution to prove a person did not consent,
but this only arises if there is evidence from which consent can reasonably be inferred.

Question 18

People are considered to be unable to give their consent if they are:

Answer 18

− A child

− Unable to rationally understand the implications of their consent

− Subject to force, threats of force or fraud.