Defences - Other People

Question 1

Compulsion or Duress

Answer 1

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.

Question 2

S24 - Defence of Compulsion

Answer 2

Belief must be genuine - 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.

The threats of death or grievous bodily harm must be “immediate” and from a person present at the time. However, different standards may suffice where women and children act under threats.

Question 3

R v Joyce

Answer 3

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 the cases where proof of mens rea is unnecessary, bona fide mistake or ignorance as to matters of fact is available as a defence”

There is no obligation on the part of a defendant to prove that they had reasonable grounds for the belief. The reasonableness or otherwise of that belief may nonetheless be important as an index of whether or not it was honestly held.

Question 5

Entrapment

Answer 5

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. Of itself, entrapment does not necessarily give rise to an abuse of process.

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.

Question 6

Pre-disposition to commit the offence

Answer 6

The Lui matter demonstrates that the courts tend to distinguish between circumstances where officers have provided an opportunity to those “predisposed” to commit certain offences, and situations where officers have initiated, encouraged, or stimulated offences “by a person who would otherwise have been a non-offender in a general sense”, and who was not “in any event ready and available to commit the offence.

Question 7

Leading precedent - Police v Lavelle

Answer 7

Although this offence would not have been committed without the aid of the undercover officers, they had merely given Lavelle the opportunity to commit the kind of offence which he had shown a willingness to commit. They had not been the instigators of interest in living off the earnings of prostitutes.

Question 8

Police v Lavelle

Answer 8

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.

Question 9

S48 - Self Defence

Answer 9

The test is subjective as to the initial need to use force in self-defence. Force may possibly be used before any actual bodily harm or threat is received, merely to escape from or break out of a threatening or dangerous situation.

Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.

It is possible for self-defence to be raised as a defence, even if the defendant has used a pre-emptive strike against the victim.

Question 10

Degree of Force Used

Answer 10

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 11

Alibi

Answer 11

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

Question 12

Written Notice of Alibi

Answer 12

Under s22 of the Criminal Disclosure Act 2008, the defendant must provide the prosecutor with the particulars of any alibi witness they intend to use in court. 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.

Question 13

OC Case to Make Enquiries

Answer 13

The particulars must include the witness’s name and address or any information that might provide material assistance in finding that witness. O/C case must ensure a prosecution report (QHA) and an active charges report are prepared on the witness.

The O/C case should also make inquiries to confirm or rebut evidence in support of the alibi.

Question 14

Procedure when alibi witnesses are interviewed

Answer 14

The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure.

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 a witness’s 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 15

Expert Evidence

Answer 15

If the defendant intends to call an expert witness during proceedings, they must disclose to the prosecutor:
- any brief of evidence to be given or any report provided by that witness, or
- if that brief or any such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
- This information must be disclosed at least 10 working days before the date fixed for the defendants trial, or within any further time that the court may allow (s23(1)).

Question 16

Consent

Answer 16

In some cases the fact that the complainant consented to the act is a complete defence.

Exceptions: Consent must be understood and given voluntarily. It is a person’s conscious and voluntary agreement to something desired or proposed by another. 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.”

Question 17

Criminality

Answer 17

If the act itself is criminal, it cannot be made lawful merely because the person whom it will harm consents to it.

Question 18

Assault Guidelines

Answer 18

Defining assault can be complex. The following are a set of guidelines to consent regarding assault.

Guidelines
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.
5. 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 19

Burden of Proof

Answer 19

In R v Nazif the Court reaffirmed that it is always up to the prosecution to prove that someone did not consent but it appears that this onus only arises if there is evidence from which consent can reasonably be inferred.