Compulsion And Duress Notes

Compulsion + Duress S 24 Compulsion (1) A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is p resent 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. (2) (1) doesn't apply to offences under following provisions: (a) Treason, communicating secrets, sabotage, piracy, murder, attempted murder, wounding with intent, injuring with intent to cause grievous bodily harm, abduction, kidnapping, robbery, arson. (3) Where a woman married/in civil union commits an offence, the fact that her husband/civil union partner was present does not i tself raise a presumption of compulsion. ? Requires: # A threat to kill or cause grievous bodily harm # Threat is to be carried out immediately if refused # Person making threat must be present during commission of offence # D must commit offence in belief that otherwise the threat would be carried out. ? Onus: # Defendant must adduce enough evidence to make the defence 'live' (legal test, judge) # Prosecution must negative the defence beyond reasonable doubt (factual) R v Teichelman Teichelman sold drugs while afraid of O'Keefe, who he thought owned guns, had a switchblade, and had heard a rumour O would murder him if no sale. But no suggestion any threat was uttered on occasions when drugs were supplied. Threats can be my words or gestures, but they must occur - mere generalised fear/apprehension is not enough. Act is strict, requires actual threat, not inference of danger in circumstances. R v Raroa [1987] Raroa helped dispose of two corpses in Timaru harbour. He was warned if anyone narked they'd be shot, and the murderers he helped had a loaded shotgun with them while driving to dispose the body/ It is not fatal to the defence's case that there was an opportunity to seek help/protection/escape, but these facts will go t o the detriment of D's belief. The belief is judged subjectively, but whether a belief is well grounded/reasonable is relevant to the issue of whether it was genuinely held. A particular threat must me made, with a particular demand (the commission of the offence). Not a threat relating to something else, not just an inference of danger. Broad reading: No defence if there was not in fact a threat of the kind required, even if the accused reasonably believed tha t there was. Narrow reading: Or at the minimum, a perceived actual threat is required - fear of harm alone is insufficient. R v Joyce [1968] Timing of threat D was ordered to be a lookout for a robbery. Because robber was inside, the threatened violence could not have occurred until sometime after the refusal. The element of immediacy for compulsion was then not met. (but then no one could be done for oral perjury...) Threats to other people Section doesn't express who the threatened violence must be directed towards, and the 'present' requirement does not say wher e offender needs to be present. Voluntary association (1) "And if he is not a party to any association or conspiracy whereby he is subject to compulsion" 1) Ruling out cases of organised crime where one member could be claimed to have threatened everyone else. 2) Voluntary association to criminals will do this - R v Sharp [1987] # No defence if D joined criminal gang that he knew might put him under pressure to commit offence - But defence will not necessarily fail merely because compulsion comes from a member of a criminal enterprise whcih accused vo lunarily joined; accused must have reasonably foreseen subjection to compulsion was possible on joining. Duress Common law defence, preserved in NZ law by s 20. "If, in committing an offence, the accused acted reasonably and proportionately to avoid what the accused reasonably believed was a threat of death or injury that would otherwise occur." - Adams Elements of duress of circumstances * Honest belief formed on reasonable grounds * Of imminent death or serious injury * Circumstances in which D has no realistic choice but to break the law * Breach of law must be proportionate to the peril involved. R v Willer "I could do no other." Willer driving in car with two friends, came across hang of 20-30 youths saying "We're going to kill you Willer", one was inside car, punching him. Willer's offence was to drive a car over a pavement and into a pedestrian district, then drove car to police station. Charged with dangerous driving. "I could do no other in the face of this hostility than to take the right turn as I did, to mount the pavement and to drive though the gap out of further harm's way, harm to person and harm to my property." Criminal Page 36

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