(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.
The threats of death or grievous bodily harm must be
“immediate” and from a person present at the time.
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
Entrapment occurs when
an agent of an enforcement body deliberately causes a person to commit an offence, so that person can be prosecuted
Is entrapment a defence?
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.
What happens when Police over-step the line?
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
Self-defence and defence of another
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.
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?
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
How do pre-emptive strikes relate to self defence?
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.
Notice of alibi
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.
How long does the defendant have to provide the particulars of an alibi 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 not interview an alibi witness unless
the prosecutor requests them to do so
What process should be followed when interviewing an alibi witness
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, endeavour to ensure the witness is interviewed in the presence of some independent person not being a member of the Police.
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).
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)).
‘Consent’ is a person’s conscious and voluntary agreement to something desired or proposed by another
consent must be
“full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.
The following are a set of guidelines to consent regarding assault
- Everyone has a right to consent to a surgical operation.
- Everyone has a right to consent to the infliction of force not involving bodily harm.
- No one has a right to consent to their death or injury likely to cause death.
- 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.
- 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.
In respect of consent who has the burden of proof
Prosecution to prove that someone did not consent