Defences Involving Other People Flashcards
Compulsion or duress
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.
Defence of compulsion
Section 24 of the Crimes Act 1961 provides the defence of compulsion:
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.
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 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.
Immediacy and presence required
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.
Presence
The following case R v Joyce34, is a useful illustration of how to decide who
is present.
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.
R v Joyce [1968] NZLR 1070
The Court of Appeal decided that the compulsion must be made by a person who
is present when the offence is committed.
Immediacy
The immediacy and presence required are well illustrated by the following case.
In C v Perrott35, the defendant had been found guilty by a District Court jury
on a charge of receiving two rifles and some other items that had been stolen
in a burglary. She was found not guilty of an alternative charge of burglary.
The jury added a rider to their verdict recommending leniency because they
felt that she had acted under duress.
In these proceedings, Perrott applied for leave to appeal against the
conviction. As her counsel’s argument proceeded, it became clear to the
Court that a defence of compulsion was being raised although this had not
been raised in the trial. It appeared that Perrott had made a confession to the
police officer to protect someone else and there had been repeated references
throughout the evidence given at the trial to a gang called the “Mongrel
Mob”.
The pressure which Perrott claimed she had been subjected to occurred only
in relation to the making of the confession and not at the time the burglary or
receiving took place. Accordingly there was no evidence of compulsion
within section 24 to operate as a defence to the charge of receiving.
The Court also found nothing ambiguous in the verdict and that the rider
from the jury had been correctly interpreted by the trial Judge on sentencing,
namely, by stating that although the offence had been proved, a mitigating
factor was the social pressures which had been brought to bear on the
defendant in the environment in which she lived.
