Defences (other people)

Question 1

Define/describe “compulsion or duress”

Answer 1

The act of compelling a person to do something against their will.

Question 2

Legally, a person can be said to be acting under “compulsion” if they commit an offence having been: ______…

Answer 2

Compelled to do so by threats of immediate death or GBH to them or another person present

Question 3

Threats involved in a defence of compulsion must be ___________ at the time of the offence, and be so grave that they might well have caused a ___________ to act the same way

Answer 3

Operating on their mind

Reasonable person placed in the same situation

Question 4

Regarding the defence of compulsion, What is meant by the term “belief must be genuine”?

Answer 4

They must genuinely believe the threat of death/GBH and must not be a party to any association or conspiracy involved

Question 5

For a defence of compulsion,

The threats of death/GBH must be _________ and from a person ______ at the time

Answer 5

Immediate
Present

(Though different standards may suffice for women and children)

Question 6

R v Joyce is an illustration of how to decide who is actually “present” re a defence of compulsion.

Explain r v Joyce

Answer 6

The court of appeal decided that the compulsion must be made by a person who is present when the offence is committed.

In this case the guy was inside the service station while Joyce was outside Joyce was not threatened with immediate death from someone who was present.

Question 7

Is “mistake” an available defence?

Answer 7

Yes, except for cases where you don’t have to prove mens rea

Classic example is tomato vs cannabis

Question 8

Is entrapment an available defence?

Answer 8

No, NZ courts have rejected entrapment as a defence,

However! It’s is up to the discretion of the judge to exclude evidence that would operate unfairly against the defendant ie when undercover police have overstepped the line.

Question 9

Police v Lavelle

Answer 9

It’s permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend

So long as the officers did not initiate the persons interest or willingness to so offend

Question 10

As per s48 CA, define

self defence and the defence of another

Answer 10

Everyone is justified in using, in the defence of himself or another’s such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 11

What is the subjective-objective test regarding using self defence as a defence?

Answer 11

• what are the circumstances that the defendant genuinely believed existed? (Subjective)
• do you accept the defendant genuinely believes those facts?
• is the forced used reasonable in the circumstances? (Objective)

Question 12

What if the force used in “self defence” is clearly unreasonable?

Answer 12

They may be liable of excessive force under s62 crimes act (or unable to use as a defence to the charge)

Question 13

Who decides on the evidential threshold for using “self-defence” as a defence?

Answer 13

The judge decides whether the evidence could be the basis for a self defence argument, then leaves it to the jury.

Question 14

Is it possible for a pre-emptive strike to apply to a defence of self defence?

Answer 14

Yes

Consider the woman who stabbed her husband genuinely believing that her and her son would be shot if she did not.

Question 15

Define “alibi” as per chambers dictionary

Answer 15

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

Question 16

What are the defendants obligations if they intend to use any alibi witness in court?

Answer 16

They must provide the prosecution with the alibi witnesses particulars (name and address)

Give written notice of the alibi within 10 working days after the defendant is given notice under s20 (pleads not guilty or first appearance at youth court)

Question 17

You should not interview an alibi witness unless directed by the prosecutor.

What is the procedure for doing this?

Answer 17

1. Advise defence counsel (give them opportunity to be present)
2. If not represented by counsel, try an make sure the witness is interviewed in the presence of an independent, non-cop!
3. Make copy of stx and provide to defence. You may withhold info that reflects on credibility of the alibi.

Question 18

What are the obligations of defence regarding an expert witness called by them?

Answer 18

They must disclose to the prosecutor:
- any brief of evidence/report
- a summary of their evidence if no report available

Must be disclosed at least 10 days prior to trial

Question 19

Using consent as a defence: consent must be:

Answer 19

Full voluntary, free and informed. Freely and voluntarily given by a person in a position to form a rational judgement

Question 20

Define consent:

Answer 20

A persons conscious and voluntary agreement to something desired or proposed by another.

Question 21

Some sections of the crimes act specifically exclude consent as a defence

What is an example of this

Answer 21

You cannot consent to death (or injury likely to cause death)