Homicide Defences: Defences Involving Other people

Question 1

Compulsion or duress definition

Answer 1

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

A person acts under compulsion if they are subject to threats of immediate death or grievous bodily harm

Threats must be operating on their mind at the time of the act

Question 2

Defence of compulsion section

Answer 2

s24 Crimes Act 1961

Question 3

R v Joyce

Answer 3

Presence required

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

Question 4

Immediacy

Answer 4

The threats must be immediate.

Question 5

Mistake

Answer 5

Except in cases where proof of mens rea is unnecessary, bona fide mistake or ignorance is available as a defence

Question 6

Entrapment

Answer 6

In NZ courts have rejected entrapment as a defence

Instead rely on discretion of judge to exclude evidence that would operate unfairly against defendant

eg abuse of process

Question 7

What is the leading defence on entrapment

Answer 7

Police v Lavelle

It is permissible for undercover officers to merely provide the opportunity for someone who is ready and willing to offend, as long as the officer did not initiate the persons interest or willingness to offend

Question 8

Self defence section and summary

Answer 8

s48 Crimes Act 1961

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances he believes then to be,
It is reasonable to use

Question 9

Degree of force permitted tested under following criteria:

Answer 9

What are the circumstances the defendant genuinely believes exist?

Do you accept the defendant genuinely believes those facts?

Is the force reasonable in the circumstances beloved to exist?

Question 10

Pre emotive strike case law and summary

Answer 10

R v Ranger
It is possible for self defence to be raised as a defence, even if the defendant used a pre emptive strike

Question 11

Alibi relevant sections and definition

Answer 11

s20-22 Crimes Act
Alibi as the plea in a criminal charge of having been elsewhere at the material time.

Question 12

s20 Crimes Act
s22 Criminal Disclosure Act

Answer 12

s22 CDA: defendant must provide prosecutor with the particulars of the alibi witness
s20: requires the court registrar to give written notice of the requirements to use alibi

Question 13

Steps for police to interview alibi witness:

Answer 13

1. Advise defence of interview and give reasonable opportunity to be present
2. Ensure witness interviewed in presence of some independant person not being police
3. Make a copy of signed statement available to defence

Question 14

Expert evidence summary

Answer 14

If fence call an expert, they must disclose:

• brief of evidence or report provided by that witness
• if brief or report is unavailable, the a summary
• must be disclosed 10 working days before trial date

Question 15

Consent summary

Answer 15

Someone accused of offence may defend actions saying that they had complainants consent to do so.

It is a complete defence.

Question 16

Consent case law

Answer 16

R v Cox

Consent must be full voluntary free and informed

Freely and voluntarily given by a person in a position to form rational judgement

Question 17

Consent and criminality

Answer 17

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

No person can licence another to commit a crime.

In such cases, don’t need to prove there was no consent

Question 18

Sections excluding consent as a defence

Answer 18

Include those relation to indecency and consent to death (s63)

Question 19

Guidelines for consent as it relates to assault:

Answer 19

1. Everyone had a right to consent to a surgical operation
2. Everyone has right to consent to infliction of force not involving bodily harm
3. No one has right to consent to their death or injury likely to cause death
4. No one has right to consent to bodily harm in such a manner as to amount to breach of peace, or other exhibition calculated to collect 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