Part 7 Defences Involving Other People

Question 1

Compulsion

Answer 1

s24

(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 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

Question 2

Belief must be genuine

Answer 2

• 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

Question 3

Immediacy required

Answer 3

• Threats of death or GBH must be immediate and from a person present at the time

Question 4

R v Joyce (Case law - Presence)

Answer 4

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

Question 5

Mistake

Answer 5

• 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

Question 6

Entrapment

Answer 6

• NZ Courts have rejected entrapment as a defence; 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
• In assessing fairness, the court will examine the reason the defendant was targeted, and the way in which the agent was involved in the initiation of the offending activity

Question 7

Entrapment - Pre-disposition

Answer 7

• Courts tend to distinguish between circumstances where officers have provided an opportunity to those to commit certain offences and those who may not have the sense to commit certain offences

Question 8

Entrapment - Police over-step

Answer 8

• Court of Appeal made it clear that, where the Police overstepped the line between proper detection and improper inducement of crime, the discretion to exclude the Police Officer’s evidence should be exercised

Question 9

Police v Lavelle (Case law - Entrapment)

Answer 9

• 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.*
• Case law relates to a prostitution sting, undercover answered an advertisment which turned out to be a prostitution ring. Undercover did not initiate Lavelle interest merely played along with his interest in the prostitution sting

Question 10

Self Defence

Answer 10

s48

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

Question 11

Self Defence - Initial need to use force

Answer 11

• Test is subjective
• Force may possibly be used before any actual bodily harm or threat is received to escape from a threatening or dangerous situation

Question 12

Self Defence - Degree of Force used

Answer 12

• What are the circumstances that the defendant genuinely believes exists
• Do you accept that the defendant genuinely believes those facts
• Is the force used reasonable in the circumstances believed to exist

Question 13

Self Defence - Judge to Decide Evidential Threshold

Answer 13

• Judge decides whether evidence that could be the basis for the self defence under s48 CA61 is fit to be left to the jury
• Self defence should be put to the jury unless it would be impossible for the jury to entertain a reasonable doubt that the defendant acted in the defence of himself or another

Question 14

Self Defence - Pre-emptive Strike

Answer 14

• 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 15

Alibi

Answer 15

s22

(1) Defendants intends to adduce evidence in support of an alibi, defendant must give writing to prosecutor

(2) Notice made must be given within 10 working days

(3) Without limiting ss(1) -

(a) Must include name and address of the witness, if not known by the defendant then material assistance in finding that witness

(b) Defendant must take all reasonable steps to ensure that the name and address is ascertained

Question 16

Alibi - Defined

Answer 16

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

Question 17

Alibi - O/C Case to make enquiries

Answer 17

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

Question 18

Alibi - Procedures

Answer 18

• Advise defence counsel of proposed interview and give counsel reasonable opportunity to be present
• If defendant not represented, endeavour to ensure the witness is interviewed in the presence of some independent person
• Make a copy of a witness’s signed statement taken at interview available to defence through prosecution
• Information that reflects credibility of alibi witness can be withheld under s16(1)(o)

Question 19

Alibi - Expert Evidence

Answer 19

• Defendant must disclose any brief of evidence to be given or any report provided by witness
• Defendant must disclose a summary of the evidence to be given and the conclusions of any report
• Disclosure must be made at least 10 working days before the date of the trial or within any further time that the court may allow

Question 20

Consent

Answer 20

• Must be understood and given voluntarily
• Is a conscious and voluntary agreement to something desired or proposed by another
• R v Cox - Full, voluntary, free and informed…freely and voluntarily given by a person in a position to form a rational judgment
• R v Crook - Real, genuine or true consent, and may be conveyed by words or conduct or both