Defences involving Other People

Question 1

Entrapment

Answer 1

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.

Question 2

Self defence, subjective and objective test

Answer 2

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 force used

Question 3

Degree of force used in self defence

Answer 3

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?

Question 4

Procedure when alibi witnesses are interviewed

Answer 4

1 - Advise the defence counsel of the proposed interview and give them a 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 signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)

Question 5

When the defendant intends to call an expert witness during their trial

Answer 5

This information must be disclosed at least 10 working days before date fixed for the defendants trial, or within any further time that court may allow.

Question 6

Guidelines in relation to consent regarding assault

Answer 6

1 - Everyone has a right to consent to a surgical operation
2 - Everyone has a right to consent to the infliction of force not involving bodily harm
3 - No one has a right to consent to their death or injury likely to cause death
4 - 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.