Defences involving other people Flashcards
section 24 of CA 1961
Compulsion Defence
a person who commits an offence under compulsion by threats of immediate death or GBH 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
what is required for compulsion regarding proximity
- immediacy
- presence
- R v Joyce
the threats must operate on the persons mind at the time of the offence and he or she must genuinely believe them. the threat must be immediate from a person at the offence
what is entrapment
r v liu
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 and does not provide grounds for an acquittal, however if the entrapment is unfair the court may exclude its evidence to avoid unfairness
how does the court assess unfairness relating to an entrapment
by examining the reason the defendant was targeted and the way the agent was involved in the initiation of the offending activity
section 48 CA 1961
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 (SUBJECTIVE TEST), it is reasonable to use
what is the subjective criteria to test the degree of force used
- 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 degree of force used reasonable in the circumstances believed to exist
if a defendant intends to produce alibi evidence what are they required to do
they must give written notice to the prosecutor of the particulars of the evidence within 10 working days after being served with disclosure requirement notice under s20 of criminal procedure act
when must the court or registrar give notice of disclosure requirements under s22 and 23 of CPA to the defendant
1) if the defendant pleads not guilty; or
2) if the defendant is a child or young person when they make their first appearance in the youth court
what must the OC do if a defendant puts forward an alibi under s22(1)
oc must:
- ensure QHA and active charges report are prepared on the witness
- make enquiries to confirm or rebut evidence
oc shout not interview an alibi witness unless requested by prosecutor. if requested by prosecutor what procedure should be followed
- advise defence and allow reasonable opportunity to be present
- if defendant has no representation interview witness in presence of independent person who is not police
- make copy of witness’s signed statement and disclose to defence through prosecutor, any info reflecting the credibility of the witness can be withheld
if the defendant intends to call an expert witness during proceedings what must they disclose to the prosecutor
- any brief of evidence to be given or any report provided by that witness
- a summary of evidence and conclusions of any report if such reports are not available
- information must be disclosed at least 10 working days before trial or within a timeframe the court allows
r v cox on consent
consent must be full, free, voluntary and informed, and must be given freely and voluntarily by a person in a position to form a rational judgement
r v cook on consent
to be effective, consent must be real, genuine or true consent, and may be conveyed by words or conduct or both
what did r v nazif say about the burden of proof re consent
it is always up to the prosecution to prove that someone did not consent but it appears the onus only arises if there is evidence from which consent can reasonably be inferred
