Defences Involving Other People Flashcards
(14 cards)
Crimes Act 1961, Section 24 Compulsion
24(1) 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 threat will be carried out and
- if he is not a party to any association or conspiracy whereby he is subject to compulsion.
What is Entrapment?
Entrapment occurs when an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted.
What is the NZ court’s view of entrapment?
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.
Crimes Act 1961, Section 48 Self-defence
48 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.
Subjective and Objective Test of Self-defence
Subjective test
- Defendant decided that use of force was required. a subjective view of the circumstances as the defendant believed them.
Objective test
- Test of reasonableness. objective view as to the degree and manner of the force used.
Degree of force used test (3 subjective criteria)
- What are the circumstances that the defendant genuinely believes exist?
- Do you accept that the defendant genuinely believes those facts?
- Is the force used reasonable in the circumstances believed to exist?
Who decides the evidential threshold for self-defence?
The JUDGE decides whether evidence that could be the basis for self-defence under s48 is fit to be left to the jury.
Alibi definition
As the plea in a criminal charge of having been elsewhere at the material time: the fact of being elsewhere.
What must the defendant include in a notice of alibi (Criminal Disclosure Act 2008, Section 22)?
- Name and address of the alibi witness.
- If the name and address is not known,
- any matter known by the defendant that might be of material assistance in finding that witness.
Procedure when alibi witnesses are interviewed.
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so.
If an interview is requested, follow this procedure:
1. Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present.
2. If the defendant is not represented, interview the witness in the presence of some independent person not being a member of the police.
3. Make a copy of a witness statement available to defence counsel through the prosecutor.
Any information that reflects on the credibility of the alibi witness can be withheld.
If the defendent 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 above not availalbe, a summary of the evidence and the conclusions of any report to be provided.
- must be disclosed at least 10 working days prior to trial or within any further time the court may allow.
ABCIIT
You cannot use the defence of consent to assault in the following cases.
- Aiding suicide
- Criminal actions
- Injury likely to cause death
- Bodily harm likely to cause a breach of the peace
- Indecency offences
- The placing of someone in a situation where they are at risk of death or bodily harm.
Types of assault you can consent to.
Every one has a right to consent to a surgical operation.
Every one has a right to consent to the infliction of force not involving bodily harm.
Burden of proof on Consent
Always up to the PROSECUTION to prove that someone did not consent.
