Defendes Involving Other People Flashcards
Defence of compulsion
What section provides the defence of compulsion and what is the definition?
Section 24 CA61
(1) subject to the provisions of this section, 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 is not a party to any association or conspiracy whereby he is subject to compulsion.
Belief must be genuine
- a person is protected from criminal responsibility if they have been compelled to commit the offence by someone at the scene who had threatened them they would otherwise be killed of caused GBH.
Defendant must have genuinely believed the threats and not be party to any association or conspiracy in carrying out threats.
R v JOYCE
- the court of appeal decided that the compulsion must be made by a person who is present when the offence is committed
Mistake and entrapment
Mistake
- “ except in the cases where proof of mens rea is unnecessary,by mistake or ignorance as to matters of fact is available as a defence.”
A defence of mistake is in effect a denial of intent
Entrapment
- in NZ 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.
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
Police v Lavelle
It is permissible for UC 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 interest or willingness to offend.
Note - court of appeal held that IC officers merely provided Lavelle the opportunity to recruit (and live off earnings) of women involved in prostitution l, an activity the evidence showed he was already willing to engage in.
Self defence - legislation
S 48 CA61
Everyone is justified in using, in the defence of himself or another l, such force as, in the circumstance as he believes at the time to be, it reasonable to use,
Note - subject test as to initial need to use force in self defence.
Section48 introduces test of reasonableness which involves objective view as to degree and manner of force.
Evidence of self defence decided by judge.
Degree of force
How is the degree of force force permitted tested initially under subjective criteria?
- what are the circumstances that the defendant genuinely believes exist (whether or not it is mistaken belief)
- do you accept that the defendant genuinely believes those facts?
- is the force used reasonable in the circumstances believed to exist?
Excess force
Section 62
Force must be used for defence only
- it is important that the force was used for the purpose of defending the defendant or another person.
If the force used is clearly unreasonable then the liability of excess force may arise under s62 CA61
The just decides whether evidence that could be the basis for self defence under s48 is to be left to the jury
Alibi
Definition
What is the definition of alibi?
- chambers dictionary defines alibi “ as the plea in a criminal charge of having been else where at the material time: the fact of being else where.
Alibi legislation
Notice of alibi
Section 22
What must the defendant do?
(1) give written notice to prosecutor of the particulars of the alibi.
(2) the notice under section (1) must be given within 10 working days after the defendant is given notice under section 20
(3) without limiting ss(1)
(a) the name and address of witness, or if not known, any matter that may assist in finding the witness
Procedure when alibi witness interviewed.
- Advise counsel
Of the proposed interview and give then a reasonable opportunity to be present - If defendant is not represented, endeavour to ensure witness is interviewed in the presence of some independent person and not a member of police.
- Make a copy of a witness signed statement taken at any such interview available to defence counsel through the prosecutor. Any info that reflects in credibility of the alibi witness can be withheld under section 16 (1)(o)
Note - OC case should not interview an alibi witness unless prosecutes requests them to do so l.
Expert evidence
If defendant intents 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 such report is not available, a summary of the evidence to be given and the conclusions of any report to be provided.
- this info must be disclosed at least 10 working days before the date fixed for the defendants trial, or written any further time that the court may allow (s23(1))
Consent
Exceptions
- consent must be understood and given voluntarily
- “ consent is a persons conscious and voluntary agreement to something desired or proposed by another
R v COX
- consent must be “full, voluntary, free and informed - freely and voluntarily given by someone in a position to make a rational judgement.
Consent to assault
Guidelines
- Everyone has the right to consent to a surgical operation
- everyone has the right to consent to the infliction force not involving bodily harm
- no one has a right to consent to body 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.
Note - 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.
