Mistake and Entrapment Flashcards
Introduction
If the elements of an offence include a requirement of intention, knowledge,
or subjective recklessness, a person can be acquitted if there was no such
state of mind at the time of the actus reus even though that mistake of fact
may not have been based on “reasonable grounds”.
Mistake
“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.
There is no obligation on the part of a defendant to prove that they had
reasonable grounds for the belief that she claims honestly to have had that
the plants were other than cannabis plants. The reasonableness or otherwise
of that belief may nonetheless be important as an index of whether or not it
was honestly held.
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. Exclusion may
be considered where law enforcement agents have generated the offending.
In R v Liu37, the court described the position as follows:
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.
However, if the entrapment is unfair, it may result in the court excluding the
evidence, using its inherent jurisdiction to prevent an abuse of process ‘by
the avoidance of unfairness’ …
“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.”
Pre-disposition to commit the offence
The Lui38 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.
Where police ‘over-step the line’
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.
Another example of where the court decided (on the grounds of fairness) to
exclude evidence obtained by an undercover officer is the case of R v Teki40.
In this case the undercover officer developed an intense personal relationship
with a woman who was growing cannabis. This woman would have done
anything the undercover officer asked her to do. She was charged with
supplying cannabis but Justice McGechan excluded the evidence on the
grounds that the evidence against the defendant was unfairly obtained due to
the close personal relationship.
Leading precedent
Police v Lavelle
The case of Police v Lavelle41, the Court of Appeal examined the defence of
“entrapment”, and it remains a leading precedent on the topic. This case
helps explain why New Zealand rejects the defence of entrapment, as
follows:
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.
As the three of them left the hotel to go to his premises, Lavelle was
arrested.
The Court held that it had been shown that Lavelle had a continuing interest in
recruiting women for the purposes of prostitution and living off their earnings.
Although this offence would not have been committed without the aid of the
undercover officers, they had merely given Lavelle the opportunity to commit
the kind of offence which he had shown a willingness to commit. They had not
been the instigators of interest in living off the earnings of prostitutes.
Police v Lavelle [1979] 1 NZLR 45
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.
