Defences involving Other people

Question 1

What is 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

Legislation for the Defence of compulsion

Answer 2

24 Compulsion
(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm 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 3

What must a person prove for a defence of compulsion

Answer 3

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 that they would otherwise be killed or caused grievous bodily harm. 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 4

Immediacy and presence required for defence of complusion

Answer 4

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.

In R v Hudson33 where two girls committed perjury to avoid threats of injury, the compulsion defence was permitted in the circumstances, as the police could not guarantee the girls’ continuous protection.

Question 5

Immediacy and presence required for defence of complusion

Answer 5

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.

In R v Hudson33 where two girls committed perjury to avoid threats of injury, the compulsion defence was permitted in the circumstances, as the police could not guarantee the girls’ continuous protection.

Question 6

Background of R v Joyce

Answer 6

Three offenders, Pihema, Munro and Joyce, went to an Auckland service station. Pihema, who had a firearm, entered the service station alone and demanded money from the attendant. There was a struggle and the attendant was shot. All three were charged with aggravated robbery. One defence put forward by Joyce was that of compulsion. He stated in evidence that Pihema said to him: “You are in it up to your neck and you cannot pull out, it’s too late to pull out!” and he pointed the rifle at him and threatened to shoot him [Joyce] if he did not co-operate.

In this case Pihema was inside the service station with the firearm while Joyce was outside, Joyce was therefore not threatened with “immediate” death or grievous bodily harm from a person “who was present” when Joyce did the acts which made him a party to the offence.

Question 7

What is the a mistake?

Answer 7

“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”

It is often said that there needs to be an “honest mistake”. However, it is doubtful whether “honest” adds anything.

In R v Wood36, a defence of mistake was raised to a charge of cultivating cannabis. The defence was that the seeds from which the plants had been grown had been given to her as Supertom tomato seeds.

Question 8

Can a defence of entrapment be used?

Answer 8

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. Exclusion may be considered where law enforcement agents have generated the offending. In R v Liu37, the court described the position as follows:

Question 9

What is Entrapment?

Answer 9

Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted. It is not a substantive defence in the sense of providing a ground upon which the defendant is entitled to an acquittal. Of itself, entrapment does not necessarily give rise to an abuse of process.

Question 10

Pre-disposition to commit the offence in entrapment?

Answer 10

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 11

What happened where police ‘over-step the line’

Answer 11

In R v Capner39, the New Zealand 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 12

Background of R v Lavelle

Answer 12

Lavelle had advertised in a local newspaper offering a live-in position to a female on the basis of “good wages, easy work”. A woman who answered the advertisement complained to police about Lavelle’s activities. An undercover policewoman telephoned Lavelle, and they met. He offered her opportunities in prostitution, saying he was “fairly used to setting this sort of thing up”.

He agreed with the policewoman that he would do the touting for her. At her suggestion they went to a hotel bar where Lavelle asked if she could see anyone suitable, and the policewoman mentioned a man sitting by himself. Lavelle approached the man who was an undercover police officer.

Question 13

Legislation for self defence

Answer 13

48 Self-defence and defence of another
Every one 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 14

Tests to assess the force used in self defence?

Answer 14

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.

Once the defendant has decided that use of force was required (a subjective view of the circumstances as the defendant believed them), Section 48 then introduces a test of reasonableness which involves an objective view as to the degree and manner of the force used.

Question 15

Degree of force used in self defence?

Answer 15

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 16

What can self defence force be used for?

Answer 16

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 excessive force may arise under s62 of the Crimes Act 1961.

Question 17

Who decides the evidential threshold?

Answer 17

The judge decides whether evidence that could be the basis for self-defence under s48 of the Crimes Act 1961 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 had acted in the defence of him or herself or another within the terms of s48.

Question 18

Are preemptive strikes allowed in self defence?

Answer 18

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 19

Definition of an Alibi?

Answer 19

Chambers Dictionary43 defines an alibi “as the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.”

Question 20

Legislation for an Alibi?

Answer 20

22 Notice of alibi
(1) If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi.
(2) The notice under subsection (1) must be given within 10 working days after the defendant is given notice under section 20
(3) Without limiting subsection (1),—
(a) the notice under subsection (1) must include the name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness; or
(b) if the name or the address is not included in the notice, the defendant must have, before giving the notice, taken all reasonable steps, and after giving the notice continue to take all reasonable steps, to ensure that the name and address is ascertained; or
(c) if the name or the address is not included in the notice, but the defendant subsequently discovers the name or address or becomes aware of any other matter that might be of material assistance in finding the witness, the defendant must as soon as practicable give written notice of the name, address, or other information, as the case may require; or
(d) if the defendant is notified by the prosecutor that the witness has not been traced by the name or at the address given, the defendant must as soon as practicable give written notice of any other matter known to the defendant that might be of material assistance in finding that witness or, on subsequently becoming aware of any such matter, give written notice of it as soon as practicable.

Question 21

What is required if the defence wish to call an Alibi witness?

Answer 21

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 22

Who makes enquiries on Alibi’s?

Answer 22

The particulars must include the witness’s name and address or any information that might provide material assistance in finding that witness. Whenever a defendant puts forward an alibi under section 22(1), the 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. This information must be provided to the prosecutor as soon as reasonably practicable.

Question 23

Procedure when alibi witnesses are interviewed

Answer 23

Step 1
Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present

Step 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.

Step 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 24

Defense calling expert witnesses

Answer 24

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 25

what must defence do if they wish to call Expert Evidence?

Answer 25

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 26

Can consent be given for any charges?

Answer 26

Someone accused of an offence may defend their actions by saying that they had the complainant’s consent to do what they did.

In some cases the fact that the complainant consented to the act is a complete defence. In offences against the person or property the general rule is that acts are criminal only when they are done against the will of the person affected or the owner of the property concerned.

Question 27

What is Consent?

Answer 27

Consent must be understood and given voluntarily.

‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another

In R v Cox44 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 28

What if the act itself is criminal, can consent be given?

Answer 28

If the act itself is criminal, it cannot be made lawful merely because the person whom it will harm consents to it. No person can licence another to commit a crime, and so in such cases it is not necessary for you to prove that there was no consent.

Question 29

What sections are there which don’t allow consent as a defence?

Answer 29

A number of sections in the Crimes Act 1961 – in particular, those relating to indecency – specifically exclude consent as a defence. A notable example of these exceptions is consent to death (s63).

Question 30

what guidelines are there around consenting to assault?

Answer 30

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 31

Where is the burden of proof in consent?

Answer 31

In R v Nazif46 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.