necessity
Compulsion (s 24)
(1) Excluded Offences - treason; sabotage; piracy; murder, attempted murder, wounding with intent; injuring with intent to cause GBH; abduction; kidnapping; robbery; aggravated robbery; arson (2) Must be a threat to cause death or Bodily harm and a demand to commit the offence - Must actually be a threat (Raroa) though can be actual or constructive (high threshold) (3) Immediacy/ Presence Immediacy - Ability of threatener to carry through with treats - Arguments are put forward that for certain offences, strict immediacy is not required. - Immediate can be taken to mean inevitable (Hudson) NB - Hudson has been criticised to an extent in the case of Hara - Assess other arguments for extending Presence - Indications that there may be situations where something less than actual presence may be required (Joyce) - Actual or constructive (possibly) - Actual - seen in Raroa but not Joyce - Constructive - Mentioned in obiter of Joyce - Where threatener is in a position to execute without actually being present - Hudson refers to "overborne" wills - Witika - dealt with battery relationship and it was held that D was no longer subject to compulsion when partner was not physically present - S & B suggests concepts such as "constructive" or "psychological" presence may be sufficient without undermining the act, - Arguments in favour - Removal of word "actually" from Act in 1961 - Hostage Scenario - "Immediate Retribution" (4) Belief that threats would be carried out - Subjective inquiry (though Raroa reminds that objective analysis can be used to evaluate reasonableness) - At this stage also ask whether there are options they can take which will nullify the threat - if they can avoid, then there can't be much of a belief that it will be carried out. - However if reasonable person would have seen escape routes and accused did not, there might be a reason why. (5) Fault - Was it reasonably foreseeable when accused joined conspiracy or association that they might end up being subject to compulsion. (Joyce) Cases - Joyce - Raroa - Hudson - Witika - Ruka (Not strictly compulsion but deals with psychological presence in the context of battered women's syndrome)
s 24 compulsion: Belief:
- "if he believes that the threats will be carried out" - This is a subjective test not an objective one. - Look at what the accused believed at the time. There is a factual inquiry as to whether the def could have honestly believed it- is it well grounded? A reasonable belief? - The defendant has to make it a live issue. - The pros has to prove that the defence doesn't apply beyond reasonable doubt ○ What utility does a subjective limb actually add? § If all these other things have been satisfied i.e. imminence, presence etc, then it's pretty obvious that they subjective believed the threat will be carried out. - Was there an opportunity to escape or render threat ineffective = honesty of belief? ○ If there was another option available then there might not be an honest belief. There has to be some subjectivity to take into account when determining whether there was another reasonable opportunity to escape open to the defendant.
Fault: s 24 compulsion
- "not party to any association or conspiracy whereby he is subject to compulsion" ○ Reasonable foreseeability (Joyce) ○ Was it RF at the time you entered the associated that you might be subjected to compulsion? § Think about the nature of that association. § This is presuming that you have volunteered to join the group § If you have been forced to join the group then obviously this is relevant because there is no fault This element is focused on when a person joins a group voluntarily when they know that they may be subject to compulsion. Comparision with 31 (2) - fault - It is potentially wider - Once you went in there and then you know and if you don't do anything to get yourself out then the defence isnt available. Does this cover relationships? If you marry someone and it turns out to be coersive and it results in threat, can you rely on this version of the defence?
Critique of Kapi:
- Application too broad - unnecessarily limits availability of CL defences (and self-defence has limited scope too) - Scope of limited defence too narrow - could be an excuse and subjective belief enough - Advantage of CL defence - only excluded offences = murder and attempted murder (cf s 24(2))
Section 24 availability? apply to the following examples
- D is driving down devon street and is chased by a group of people who are yelling and being violent members of the public who are in thei way A) Group yells get up on the footpath or w will beat you up B) Group yells get of the way or we will beat you up - Demand "get out of the way" - Threat "we will beat you up" C) Group yells get up on the footpath- a. no express threat, but potentially an implied threat- consider: what is their conduct? Are they whacking people out of the way? that may be enough to constitute an implied threat. You need a threat by implication of their conduct. Although there is a demand here, section 24 does not apply unless a threat exists.
s 48 self defence: Procedural and evidential aspects:
- Evidential onus on the defendant to bring evidence forward that the defence is a possibility. - Then the legal onus is on the prosecution to prove that the defendant is guilty beyond reasonable doubt and that the defence does not apply. - The defence should be put to the jury if there is a "credible narrative" of it. It is not necessary that self-defence be raised by counsel for defence - "self defence should be put to the jury where, from the evidence led by the Crown or given by or on behalf of the accused, or from a combination of both, there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence" (Tavette) - Once a credible narrative is established, the burden rests with the prosecution to disprove self-defence beyond a reasonable doubt. The accused may be discharged under s 347 if evidence put forward by the Crown is insufficient to enable a jury to properly convict (Oates)
Self defence (Section 48 of the Crimes Act):
- Provides for the defence of self-defence or defence of another. The defence can be invoked in respect of all offences against the person. - Provides a complete justification, when the defence is successful, an acquittal will result, but self defence fails if excessive force is used: s 62 of the Crimes Act then applies to render the accused liable for the excess force. The words "or another" mean any person whom the accused believes to be in a situation of imminent peril justifying the use of protective force. There need not be a relationship (R v Thomas) Section 48 contains a mixed subjective-objective test. A) There is a subjective view of the circumstances- as the accused believes them to be B) And an objective test that the force used is reasonable, in those circumstances. C) In essence, the defence will apply if the accused honestly believes they are under threat of imminent peril and they use reasonable force to repel that threat.
Key issues to consider with self defence (important!):
- Section 48 contains a mixed subjective-objective test a. Did the accused honestly believe he or she was about to be killed or suffer serious injury (subjective test) b. Was the force used to repel the threat reasonable in those circumstances (objective test) - Whether the force was reasonable depends upon whether it was both necessary and proportionate - A pre-emptive strike will not negate the defence, but, if an accused does act pre-emptively, questions may be raised as to whether the force was necessary.
s 48 self defence- Pre-emptive strike:
- This is where the accused defends themselves before the person they are defending themselves from attacks. - So self defence doesn't preclude a pre-emptive strike (Wang). But if other course of action are available it may not be reasonable to use force (Wang) Consider the imminence of the peril, the seriousness of the harm and any alternatives the accused had when considering the pre-emptive strike (Hackell).
self defence s 48: battered defendants:
- With the repeal of the provocation defence there are now fewer options available to battered defendants who kill their abusers. Self-defence is unlikely to be successful in many of these cases because of the requirement that the threat be imminent, and the fact that courts often see battered defendants as having options that are practically not available.
self defence s 48: Limitation on when the defence is available:
- there is a limitation on availability of defence • Must be an offence in which the use of "force" (or a threat to use force) is an element • The actual use of physical power or a threat to use physical power Bayer- passively sitting in the doorway to put the woman off was not seen as a use of force. Therefore the defence of self defence was not relevant.
Three readings of Wang:
1) Self-defence was not available because D's belief was not reasonable (p.535 21ff) - It is a subjective test so why look at reasonableness? 2) Self-defence was not available because this was a pre-emptive strike and there was no imminent harm (p.539 line 25ff) - How to do you determine what imminent harm is? Inevitable harm? 3) Self-defence was not available because D's belief in the necessity of the force required was not reasonable (p.534 45ff).
Elements of CL defence:
1. See kawiti - the defence is not available where D has a realistic, law abiding alternative available to him (p.442 Simester & Brookbanks) - You have to get yourself outside of section 24. - Because it is an excuse it is probably better to look at the view of the defendant. 2. Perception of threat must be "correct or reasonably based"
Structure - breakdown of s 48
1. Use of force 2. Defending self or another 3. Circumstances as D believes them to be [subjective] 4. In those circumstances, was the force used reasonable? [objective] 5. Conclude
breakdown of s 48: 1. Use of force
1. Use of force Self-defence only available where there has been a use of force: ¥ May be through an instrument eg weapons, car (Powell, Fairburn). ¥ Against a person. ¥ Application: ¥ Ms D drove V into oncoming traffic - clear application of force; self-defence may be applicable
breakdown of s 48: 2. In defence of himself or another
2. In defence of himself or another ¥ Look at who D might be defending apart from themselves ¥ Wide provision
Self Defence (s 48) elements
(1) D must have used force (either in defence of self or another) (2) Subjective Limb - What were the circumstances in the eyes of D? - Was there a belief in the necessity of force (Fairburn) - Was D's belief genuine? (Fairburn) - Consider for both circumstances and necessity of force. (3) Objective Limb - Was the use of force reasonable? (Wang) - Imminence - Proportionality - Alternatives - Belief in the necessity of force (Objectively) (Wang) Cases - R v Wang - R v Fairburn
breakdown of s 48: 3. Circumstances as D believes them to be
3. Circumstances as D believes them to be a. What did D say/indicate they believed. • Things to focus on: what did D think about behaviour of V; what did D think might happen to them; did D believe any threats would be carried out etc. b. Is D's stated belief honest/genuine? Having identified what the defendant appears to subjectively believe, do we think this belief is honestly held? i. Apply an objective test to determine honesty (as discussed in Raroa). ii. If the defendant's belief is objectively unreasonable, is there anything on the facts to explain why he or she nevertheless holds such a belief? BWS; previous trauma; experience with victim, etc. iii. So, just because there is an unreasonable belief, that doesn't mean it isn't honest. And because this is the subjective limb, that's all we're looking for. c. Is a defendant's belief as to necessity of force relevant to the subjective enquiry? Only discuss if relevant: i. Has D stated their belief as to necessity of force? ("This is what I thought, and this is what I believed I had to do in response") AND ii. Is this belief unreasonable, even though honestly held? If so .... Wang: A defendant's belief as to necessity of force is not part of the subjective inquiry. "No reasonable person would have thought it necessary to kill." Fairburn: An unreasonable belief as to necessity of force, if honestly held, may still support the defence. Approach taken can affect availability of self-defence where D's belief is objectively unreasonable. ¥ Under Wang, an unreasonable belief as to what is necessary could bar availability of defence. ¥ Under Fairburn, provided the belief is genuine, the defendant's belief as to necessity of force can be included in the circumstances as D believed them to be. [points on Fairburn] ¥ If we accept Fairburn as authority for view that belief as to necessary response should be assessed subjectively, this limits the application of Wang to the requirement of imminence when there is a pre-emptive strike. ¥ Taking the Fairburn approach, even if Courts accept D's belief that force was necessary is a relevant subjective circumstance, the case did not discuss Wang. ¥ Fairburn didn't actually overrule Wang Application ¥ Ms D "thought she had a duty to protect her daughter from what she believed was inevitable future serious harm." ¥ Is this a sufficient stated belief as to necessity of force? She didn't say it was necessary to drive into oncoming traffic.
breakdown of s 48: 4. Was the force used reasonable?
4. Was the force used reasonable? ¥ Objective limb. ¥ Assessment made by jury having decided how D perceived the circumstances. ¥ So not asking whether force used was reasonable in the circumstances as they actually were, but whether it was reasonable in the circumstances as D believed them to be. ¥ Considerations: ¥ Alternatives ¥ Proportionality of force used ¥ Imminence (especially in pre-emptive strike cases) 1. under reasonableness: Other alternatives ¥ If we take Fairburn approach and we accept D believed force was absolutely necessary, this may not have as much significance. ¥ But in Wang the objective assessment of alternatives precluded the defence 2. under reasonableness: Proportionality ¥ Degree of force used must be proportionate to the threat of harm that D perceives there to be. ¥ "Must be immediacy of life-threatening violence to justify killing in self-defence or defence of another." (Wang at 539). 3. under reasonableness: Imminence in pre-emptive strikes ¥ May be only remaining significance of Wang post Fairburn. ¥ Pre-emptive strikes allowed in principle. ¥ In order for force to be reasonable there must be imminence/immediacy of harm. Should we extend requirement to include inevitability? No: ¥ Precedent clearly indicates an express requirement the harm must be imminent. ¥ Policy reason: if there is a time lapse should take opportunity to escape rather than use force. Yes: ¥ No statutory requirement in s 48 - common law gloss. ¥ Inconsistent with (eg) battered women/hostage situations. ¥ Law Commission recommended reform indicating inevitability requirement. [so probably stronger arguments in favour of extending to include inevitability.] CONCLUDE!
In a number of cases, courts have emphasised that self defence involves answering three questions:
A) What were the circumstances as the accused honestly believed them to be? B) In those circumstances, was the accused acting in his or her own defence or defence of another? C) Was the force used reasonable in the circumstances as the accused believed them to be?
Green case- s 48 application to facts
CHarge involving force? He is going to be charged with something that involves the use of force- used a gun subjective limb: What did D think was going on? The officers in question were not normal police officers, but were KGB infiltrators who were trying to kill Evaluation? It wasn't actually happening so did he actually think that? A RP wouldn't think this Personal impairment which affects his belief? - He was having paranoid delusions conclusion Therefore this was an honestly held belief that KGB infiltrators were going to kill him. 3. objective: reasonable? Proportionate: He thought that he was going to be killed so he shot the police officer in the arm. Yes it is. Because proportionate to thinking someone is going to kill you is killing them- it's the same. Therefore anything less than killing the person who you think is trying to kill you will be proportionate.
s 20
Common Law Defences S 20 - Common law defences continue to exist so long as they are not inconsistent with those found in the statute
Compulsion: - Relevant threat
Compulsion: - Relevant threat (death or grievous bodily harm only)- cant just be any threat, it has to be a serious threat. o Arguably can be a threat to a person other than the accused. E.g. someone you are close to e.g. a child. o Note (arbitrary) list of excluded offences in s 24(2) The section is only really going to apply to less serious offences. If you commit a really serious offence it isnt really going to apply.
R v Wang: self defence s 48
Concerned a woman who tied up her husband and killed him while he was intoxicated and asleep. There is a subjective view of the circumstances- as the accused believes them to be!!!!!!! - Reasonableness is not completely irrelevant, even to the subjective limb. - The jury will take the reasonableness or otherwise of the accused's belief into account in determining whether or not it was honestly held (R v Wang) The CA did not believe that Wang could have thought what she said she did: "one could not reasonably have considered that those threats might be carried out by him "at any moment", in his then state" And an objective test that the force used is reasonable, in those circumstances!!!! - The objective test is the requirement that the force used must be reasonable. In determining this, the court considers such things as: - Whether the force used was NECESSARY The PROPORTIONALITIY of retaliation Necessity (under obj limb): - Whether the force was necessary depends upon the imminence and seriousness of the attack or anticipated attack. - NZ law doesn't impose a duty to retreat, but the availability of an opportunity to do so is relevant to the question of whether force was necessary (R v Wang) - The force may have been unreasonable because some other, non violent option was available. Force is not necessary when the danger is not imminent (R v Wang) proportionality (under obj limb):
R v Teichelman- compulsion
D was convicted of four charged of supplying heroin and cocaine to an undercover constable. He contended he had supplied the drugs because he was afraid because of threats made to him by Okeefe. he claimed he was acting under compulsion and so should be acquitted. trial judge held the defence of compulsion was not open to him because the person making threats must be present from the time the threats are made until the completion of the offence. Okeefe had not been present when D went away to obtain drugs. D appealed on the ground that the judge misdirected the jury in his ruling about the availability of compulsion. CA held: trial judge's ruling had been wrong. the relevatn charge was one of supply. Acts preparatory to the supply such as obtaining the drug were not ingredient of that offence. O Keefe was present when the drugs were actually supplied. Court nonetheless held that compulsion should not have been left to the jury as a defence. Following Joyce, the court held before compulsion can go to the jury there must be evidence of a CONTINUING threat of death or GBH from a person who is not only present when the offence is committed but is also in a position to carry out the threat immediately. even viewing the evidence in the most favourable light to D, the most the court found was that D beleived that if he did not cooperate he would be in some danger. This did not amount to the continuing threat of immediate GBH required by s 24. the court stated that s 24 only applied to standover situations where the accused fears instant death or GBH. the strict requirements of s 24 must be met for its narrow release from criminal responsibility to apply. appeal was dismissed.
Common law defences:
Duress of circumstances (excuse)--> subjective Necessity (justification) --> actual threat. Think creatively about the two middle scenarios to think about whether D can have a defence
Kapi v Ministry of Transport (necessity)
Facts: Driving home Kapi drove into a parked car. Althought here was no one on the street, Kapi apparently feared that he would be beaten up by Samoans, so he drove off immediately rather than checking whether anyone was in the car and had been injurred. he was charged under the Transport Act 1962 for failing to stop at an accident and convicted at first instance. CA, Kapi argue that the common law defence of necessity should have been made available to him at his trial. it was submitted that this defence was available under s 20, which preserves all CL defences not otherwise altered by or inconsistent with Crimes Act. However, Kapi's defence of necessity arose out of his apparent belief that the would have beaten up by Samoans. CA thought that the scope of the necessity defence, at least in so far as it concerned a dear of death or GBH from other people, had been considered by parliament and dealt with by s 24, which relates to the defence of compulsion. when s 24 provides for a defence only where the criminal act is done while being threatened by a person actually present at the commission of the offence, s 20 cannot preserve a common law defence of necessity arising from a fear of violence from people not present at all. Appeal was disposed of. however court did review defence of necessity. Court did not decide that the defence was available in NZ but said that, if it were, it requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. provided that the beleif is honest and reasonable, breach of the law is excused where there is no realistic choice but to act in that way, and the act was proportionate to the particular peril.
compulsion: R v Neho
Facts: Neho was in trouble with the Mongrel Mob. she owned them about 20,000 and they wanted their money. she was told that if she did not pay, then she would get a hiding. worse would happen to her young daughters. neho accordingly reached an accomodation. she would fraudulently use credit cards to obtain whiteware, electronics and furniture from retail shops. she would give the goods to the Mob and they would then reduce her debt by $100 at a time. sought to rely on the defence of compulsion. trial judge removed the defence from the jury. neho was convicted and she appealed. CA held: trial judge was right to remove defence, stating that the defence fell well short of the exacting standard required. no one was threatening Neho when the offences were actually committed. any physical assualt on her was not going to happen in the store, nor even in the carpark outside given the presence of members of the public. her children were elsewhere and they were not under immediate threat. accordingly, there was nothing to suggest that the requirements of Teichelman were met, and that there was someone who would carry out any threats of violence "then and there". it was also important that Neho's offending had occurred on repeated occasions over a period of time. in fact, the credit card fraud repayment plan was originally her idea. it was always reasonably open to her to go to the police, rather than to perpetrate the offending. Neho's appeal was dismissed.
2.Objective limb:
How to evaluate objective limb: - In the circumstances was the force used reasonable? - An independent assessment to be made by the jury. - Proportionality- is the threat perceived and the harm caused by the D proportionate? - Retreat- what a RP would do - they might have moved themselves away from the threat to avoid violence. - Imminence- was there a way to get away from the threat- some other course of action available? 2.Objective limb: - The objective test is the requirement that the force used must be reasonable. In determining this, the court considers such things as: - Whether the force used was NECESSARY - The PROPORTIONALITIY of retaliation - "an independent assessment to be made by the jury" - Not what the accused thought was reasonable. Necessity (under obj limb): - Whether the force was necessary depends upon the imminence and seriousness of the attack or anticipated attack. - ]NZ law doesn't impose a duty to retreat, but the availability of an opportunity to do so is relevant to the question of whether force was necessary (R v Wang) - The force may have been unreasonable because some other, non violent option was available. Force is not necessary when the danger is not imminent (R v Wang) proportionality (under obj limb): - Proportionality refers to the amount of force threatened compared with the amount of force used. The harm in the force used to defend must not be disproportionate to the harm in attack. - For example, if X threatens to slap Y, and Y shoots X in the leg, the force used in defence is disproportionate to the harm caused in the attack. This is true even if shooting was the only way to prevent the attack. - Cases do not define where the line is between what is proportionate and what is disproportionate, but the decision in Wang implies that blackmail does not justify the use of deadly force.
s 48 self defence: things to consider under subjective limb
How to evaluate subjective limb Subjective limb (honest belief) 1. Actual existence - i.e. yes it was an honest belief because it was actually going on here- she actually had a gun 2. Reasonable person? NOTE this is not objective but helps determine whether it was reasonable for them to hold that belief. 3. Personal impairment/characteristics of the accused? Even though a reasonable person wouldn't have thought it was going on, I did because of something specific about me e.g. intoxication or mental impairment. Note these things are ALWAYS considered to determine whether the person HONESTLY BELIEVED the person was about to attack them or another person. - 1.Subjective limb: - Identification of the relevant circumstances as the accused believed them to be (rather than what they actually were) - Evaluate whether the belief was honest/genuine. - Self defence applies in situations where the accused honestly believes they are under threat of an imminent attack (R v Ranger) - The accused has an evidential burden to show that his or her belief was honest, even though it might have been unreasonable in the circumstances. - Reasonableness is not completely irrelevant, even to the subjective limb. Ask would a reasonable person have honestly believed that the other person was going to attack them? This is NOT an objective test but it is still relevant to whether they subjectively believed it. - The jury will take the reasonableness or otherwise of the accused's belief into account in determining whether or not it was honestly held (R v Wang) - The CA did not believe that Wang could have thought what she said she did: "one could not reasonably have considered that those threats might be carried out by him "at any moment", in his then state"
Police v Kawiti
Kawiti drove to a hosptial emergency department while disqualified and having had way too much to drink. she did so because she was in unbearable pain from a shoulder which had been dislocated by a flying karate kick and she was terrified that she would be attacked again by her husband. Kawiti was charged with driving while disqualified and driving with excess blood alcohol. she admitted all the elements of the offence of both offences but sought to rely on a defence of necessity. Is the defence available in a prosecution under the transport act ? 1. In accordance with the decision in Kapi, court held that in so far as the source of the duress or compulsion to break the law arises from fear of another person, then s 24 limits the availability of a defence of necessity to the circumstances set out in that section. accordingly kawiti could not rely on her fear of being attacked again she at the time she got in her car and drove to the hospital, there was no one actually present who was threatening her. 2. Court was prepared to hold that a defence of duress of circumstances was available in NZ where the duress was not that of a person. the danger had to be one of immient death or serious injury to the defendant or some other person. court gave the example ofa disqualified driver whose wife has a heart attack in a place where there is no telephone and no person to provide assistance, and in reasonable fear of her imminent death, drives her to the nearest hospital if so, Are the ingredients of the defence those set out in Kapi? court said that the ingredients of defence were, at the very least, those set out in kapi. it was also necessary to bear in mind as a matter of public policy, it is essential to limit the defence by means of objective criteria formulated in terms of reasonableness. in kapi the CA had suggested that the response of the defendant must be proportionate. court thought it likely that the proportionality of the response should be measured by references to whether a sober person of reasonable firmness but sharing the characteristics of the defendant would have responded in the same manner. However this issue dd not need to be decided by the court and the court thought it best that any additional ingredients be developed on a case by case basis.
s 24 compulsion: Relevant threat/relevant demand? apply to the following examples
Relevant threat/relevant demand? 1. I will kill you unless you help me rob a bank - It is a relevant threat. Defence doesn't apply because robbery is excluded under s 24 2. I will kill your child unless you stab V in the arm - It is a relevant threat. However excluded under s 24 3. I will stab you in the arm unless you throw this carton of goods over the ferry. - Relevant threat. Excluded under s 24 because it is a piratical act. 4. I will break two of your child's fingers unless you set fire to my car. - It is not a relevant threat- breaking two fingers is not grievous bodily harm. Defence is excluded under s 24- arson. This shows how difficult it is to come under the defence. You need to be subjected to a serious threat and the offence you are committing needs to be a low level offence that isnt excluded by section 24.
application of section 24 to Hudson case
Section 24 applicability in the Hudson case: - Carrying out the threat couldn't happen right then and there but the threat was imminent in that once she left the court room they could carry out the threat. Policy argument: context: - if we say no in this instance, we are saying no defence available EVER when it involves oral perjury. - What are the consequences of this? Presence: - Arguments for Hudson: ○ They were physically present. However they couldn't carry out the threat. But once they left the court room they could carry out the offence. ○ Presence and immediacy is dealing with situations where your will is overborne- so is this situation enough. - Presence: ○ The old Act had actual presence ○ The new Act says presence § This suggests that parliament intended presence to take a wider meaning than actual presence.
Is compulsion under s 24 available to sharon Kawiti? Why/why not?
She ran to the car and drove to the hospital while she was drunk disqualified - Demand- there was no demand for her to commit the illegal offence- get in to the car Threat was no longer imminent- at the time she committed the offence, there was no operative threat. By this stage husband was drunk and passed out in the car. If she was arguing that there was an ongoing threat from the car the threat was no longer imminent because they were no longer around.
wang application subjective limb
What did D think was going on? I thought my husband was going to kill me and my sister (if no money) in the morning or at some time and killing him while drunk and passed out was the only way to prevent this from happening. Reasonable person? The CA did not believe that Wang could have thought what she said she did: "one could not reasonably have considered that those threats might be carried out by him "at any moment", in his then state" Personal impairment: She was severely depressed which meant she was more likely to think that the husband would carry out his threat. Evidence from Doctor. CA conclusions: Although not actual or reasonable threat of harm. Her characteristics make it subjectively and honestly believed. She honestly believed that he was going to kill her and the sister. She had two subjective beliefs: 1.husband would kill her (+ sisters) 2.only option to kill them Court looked at 2 objectively. Why did the court look at this point objectively when we know that she has certain characteristics which make her think unreasonably? A. Self defence was not available because D's belief was not reasonable (p.535 line 21). i.e. the court didn't believe that she honestly believed that. Critique of the courts approach: However this analysis seems to discount all her personal characteristics.
compulsion: R v Joyce
joyce and two other accused were convicted of aggravated robbery of a service station during which the attendant was shot and injured. joyce was charged as a party to the offence. he was not actually present in the service station at the time of the offence. joyce said that he agreed to engage the attendant in convo so the others could sneak in and take the money. his evidence was that later pihema said the plan had changed and he was going to use a rifle to hold up the attendant. Joyce said he wanted to pull out. Pihema said "you are in it up to you neck and you cannot pull out, it is too late to pull out" he pointed the rifle at Joyce and threatened to shoot him if he did not cooperate. Joyce said that he followed the others to the service station with the intention of assisting the attendant and disarming Pihema. however before he reached the service station he heard a shot and ran back to the car. Joyce argued at his trial that he was acting under compulsion and according to s 24 should operate to acquit him of the charge. section 24 provides that a person who commits an offence under compulsion by threats of immediate death or bodily harm from a person present when the offence is committed, is not criminally responsible if he or she believes the threat will be carried out if she or he does not cooperate. the trial judge held that compulsion was not open to Joyce as a defence because robbery was one of the offences excluded by s 24(2) CA held that the judge had been wrong to exclude compulsion of those grounds as while robbery was excluded by s 24(2) aggravated robbery was not. Aggravated robbery was added to the list of excluded defences in 1973 [as a result of this case]. however court held that compulsion could not have been open to joyce in any even as Pihema, the threatener, was not present with joyce at the time of the offence was committed. the word "immediate" in the section also meant that the threatener should have been present if joyce was to beleive the threats would have been carried out immediately. Joyce's part in the offence was confined to his actions on the street. the court found that the jury had not beleived that joyce was in fact acting as a look out. further a defence of compulsion cannot be considered unless there is an evidential foundation for it. joyce's conviction for aggravated robbery was overturned and a verdict of guilty of assault with intent to rob was substituted.
Thomas case - s 48 self defence of another
subjective limb What did D think was going on? Thought an arrest was being made with excessive force Evaluation: A RP wouldn't think this: Facts saying is was mistaken and unreasonable belief Personal impairment: She was intoxicated which meant that although a RP wouldn't think this, she did. objective limb: reasonable? Court thought yes because the defence was upheld.
application of objective limb Wang s 48
was the wife killing the husband reasonable? Proportionality: She thought that husband would kill her and sister. It is proportionate for her to kill him. Imminence: Imminence must have some sort of flexibility. It must not be limited to situations where there is an actual physical threat. There must be some flexibility. However the question is how much flexibility? The CA were not very flexible here. The force may have been unreasonable because some other, non violent option was available. Force is not necessary when the danger is not imminent (R v Wang) Retreat: Were there other courses of action open to avoid using violence? -we cant expect someone with a personal characteristic-mental disability or physical disability to retreat in the same way as a normal person. Have to see what is reasonable taking into account these personal characteristics
○ Karpi v Ministry of Transport
○ D was charged with failing to stop after an accident. If we are involved in an accident we have an obligation to stop and check if those involved are okay. For some reason he drove into the back of a parked car and he didn't stop to ascertain if everyone was alright. Why did he fail to stop? What was his excuse? § He thought he would be beaten up by a group of Samoans. However no Samoans were actually there. He thought they would emerge out of nowhere and beat him up. § Let's assume that getting beaten up is grievous bodily harm. Can he rely on section 24? □ The demand is that he complies with the law rather than a demand that he breaks the law. □ It doesn't make sense to argue defence of compulsion because they would be very unlikely argue that they demand he do this sort of thing. □ Therefore section 24 doesn't apply Can the common law defences apply? ○ You have to have reasonable grounds for believing in the harm/peril § D did not raise enough enough to suggest it is reasonable. He did not fear immediate injury. § Objective test ○ An honest belief that there is harm/peril is NOT enough (p.59) ○ How serious must the harm/peril be? i.e. emergency - There was no claim for necessity - Section 24 tells us that when we are acting under a threat, the threat has to be from someone who is present. - It would then be inconsistent for D to fail to argue the defence of section 24 and then fall back on s 20 which preserves common law defences which does not require presence? - Section 24 is about threats and demands - Common law defences are about threats with no demand- doing the thing to avoid the harm, not because there is a demand to commit an offence. However this is not the way the case has been interpreted. Case has been interpreted to mean that wheneber you ave a threat from a person, section 24 is where you go (the common law cant step in because it would be inconsistent with parliamentary intent)
