Theft where compulsion is raised (Sections 24 and 219(1)(a) Crimes Act 1961)
[Note: Once the defence has been raised, the onus is on the prosecution to dispel it beyond reasonable doubt. The phrasing of the question trail must clearly reflect this onus: see Hay v R [2015] NZCA 329 at [26]–[33].]
Charge 1: Theft by taking with compulsion defence under sections 24 and 219(1)(a) of the Crimes Act 1961
The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.
| 1. |
Are you sure that Mr Smith took cigarettes and alcohol from Countdown Supermarket at Rosebank Avenue, Waharoa? |
|
“Taking” does not include the situation where ownership, possession, or control over property is obtained by consent, even if by deception. If no, find Mr Smith not guilty. If yes, go to question two. |
|
| 2. |
Are you sure that Mr Smith took the cigarettes and alcohol dishonestly? |
|
“Dishonestly” means taking the cigarettes and alcohol without a genuine belief that anyone entitled to give him consent or approval, consented or gave him authority to do so. This belief does not need to be reasonable. If no, find Mr Smith not guilty. If yes, go to question three. |
|
| 3. |
Are you sure that Mr Smith took the cigarettes and alcohol without claim of right? |
|
“Claim of right” means Mr Smith had a genuine belief that, at the time of taking the cigarettes and alcohol, he had a lawful right to take the cigarettes and alcohol. If no, find Mr Smith not guilty. If yes, go to question four. |
|
| 4. |
Are you sure that Mr Smith took the cigarettes and alcohol with the intent to permanently deprive Countdown Supermarket of them? |
|
[Note: Amend or delete (a) or (b) of the definition of “intent to permanently deprive” set out below as required.] “Intent to permanently deprive” includes an intent to deal with the cigarettes and alcohol in a way which means: (a) the cigarettes and alcohol cannot be returned in the same condition; or (b) Countdown Supermarket is likely to be permanently deprived of the cigarettes and alcohol or of any interest in the cigarettes and alcohol. If no, find Mr Smith not guilty. If yes, go to question five. |
|
| 5. |
Are you sure that, when Mr Smith took the cigarettes and alcohol, Mr Young was not present at the Supermarket? |
|
If no, go to question six. If yes, find Mr Smith guilty. |
|
| 6. |
Are you sure that Mr Young did not threaten to shoot Mr Smith if he did not take the cigarettes and alcohol? |
|
If no, go to question seven. If yes, find Mr Smith guilty. |
|
| 7. |
Are you sure that, if Mr Smith refused to take the cigarettes and alcohol, Mr Young’s threat to shoot Mr Smith would not be carried out immediately? |
|
If no, go to question eight. If yes, find Mr Smith guilty. |
|
| 8. |
Are you sure that Mr Smith did not believe that Mr Young would shoot him if he refused to take the cigarettes and alcohol? |
|
If no, find Mr Smith not guilty. If yes, find Mr Smith guilty. |