Defences Flashcards
R v Terewi
SELF DEFENCE
T had confrontation at pub and then returned home. Police came to house and knocked on the door. T thought it was the person he had conflict with at the pub. T said “fuck off or ill shoot you”. Turns out it was the police. Convicted of threatening to cause GBH. T pleaded self defence.
COA held that force for the purposes of self defence includes a threat to apply force and is not limited to physical force. Would be absurd that you’d be able to use offence if did actually hit someone but not if you just threaten to do so.
In the circumstances he believed himself to be in there was a violent aggressor at the door. Even though this was a mistaken belief, because self defence is subjective to accused self defence still available.
Must be a mistake of fact and not law.
Simpson v R
2010, COA (NZ)
SELF DEFENCE AND INTOXICATION
Two brothers had been heavily drinking when they had a confrontation and S was asked to leave. He could not leave as was intoxicated. Brother continued threatening him and suffered head injury from being hit in head with base ball bat. S thought he was in danger as he weakened so assaulted brother breaking his eye socket. S pleaded self defence to charge of causing GBH with intent.
Held that intoxication can be taken into account when considering the circumstances from the accused POV.
Held that because s 48 circumstances are very subjective if perception is clouded by alcohol it must be taken into account.
Graves v NZ Police
2010, HC (NZ)
SELF DEFENCE
G arrived home intoxicated and was unable to get access into house so broke through the window. The noise awoke neighbors who called the police who then entered the house. G believing it was an intruder pointed laser gun at police, then police said put the gun down and G said “this is my house I’ll do what I want” and pointed gun again.
Court accepted the first time G aimed the gun was in self defence because he had mistaken the identify of intruder. However the second time self defence not available because he was acting for some other motive by looking at prior and subsequent events.
It wasn’t a reasonable force in the circumstances because there were other option available to him.
R v Kingi
Where a phycological defect is short of insanity it is also relevant to how accused perceives circumstances.
Afamasaga v R elements to consider when looking at whether forced used was reasonable:
REASONABLENESS OF SELF DEFENCE
Imminence of the attack or anticipated attack.
–> to justify a pre-emptive strike you have to be in a real or crystallised danger, it is not enough that you are anticipating some future attack.
–> R v Wang held that wife stabbing husband whilst he was asleep and intoxicated after he threatened to kill her was not SD because not in immediate danger.
Whether the defensive reaction was reasonable and proportionate to the perceived danger.
–> Nature and seriousness of the attack
–> characteristics of the parties may be relevant
–> R v Murray - the fact that the brother was bigger and had karate skills was relevant
–> King v Police - smashing bottle on head was held to be reasonable because had broken arm and already had bottle in other hand so was only course of action available.
Whether there were alternative course of action that could have been used.
–> R v Lindroos
–> good place to come up with arguments
Case held that in context of lethal or deadly force reasonableness requires the force being absolutely necessary.
R v Lindroos
2010, COA (NZ)
REASONABLENESS OF SELF DEFENCE
Man had rented two bedroom sleepout , agreed to let someone else stay on basis that no additional guests. Arrived home to flat mate with guest over. That had confrontation and flat mate assaulted L. 20 minutes later L stabbed him.
Held this was not an act of SD and rather an act of aggression. There were alternatives available. Relevant that there was a 20 minute lapse, he could have left the property and there was other people present who could have stepped in when there was serious threat.
McNaughton v R
2013, COA (NZ)
EXCESS FORCE
Rival gangs organized a fight. It escalated and one member got a gun, upon presenting it was assaulted and told to put it away. In that time another member got a gun and when approached by the same assaulter M shot him in what was claimed to be “self defence”.
Held that SD not available because excess force was used to what was necessary e.g., alternatives of shooting leg or less harmful areas of the body.
R v Teichelman
COMPULSION
Set out the requirements of compulsion:
(1) Threats of particular kind i.e., death or GBH
(2) The threat must be to kill or inflict that harm immediately if demand not met
(3) Threats need to be from a person who is present when offence is committed
(4) D must commit the offence under the belief the threat will be carried out
R v Raroa
1987, HC (NZ)
COMPULSION
Two men were murdered as a result of narking on offender for stealing some pigs. R was told if he narked he would end up the same way. R claimed his assistance in disposing of the bodies was in compulsion to this threat.
Compulsion declined as there was no specific demand that if he didn’t dispose of bodies then he would end up the same - the threat and unlawful act were not directly linked. He instead disposed of bodies out of mere fear of the gun in their position when they said get in the van.
Held that implied threat and mistaken belief in threat is not sufficient.
Held that requires being in position that the threat can be carried out then and there.
Illustrated the courts narrow interpretation of section 24.
R v Neho
2009, COA (NZ)
COMPULSION - IMMEDIACY AND PRESENCE
Gambler had borrowed money from mob members and could not pay it back. Instead would repay funds by stealing credit cards, buying stuff with them and giving it to the mob. She claimed she only made purchasers due to threats that mob will kick living daylights out of her and sexually assault her daughters if she didn’t comply.
COA held that compulsion requires a situation where there is no other realistic choice than to break the law - if there is any alternative compulsion likely not available - she could have got money some other way and could have advised shop assistances.
Held that there was no evidence that the person making the threat was proximate enough at the time of her unlawful act to carry pout the threat as different mob members accompanied her to the offence. Recognized that possible for threat to be reinforced by other people but not accepted here = obiter.
Compulsion not available.
Akulue v R
2013, SC (NZ)
COMPULSION - IMMEDIACY AND PRESENCE
A threaten by cousin in Nigeria to kill other family members in Nigeria if he doesn’t assist in importing drugs into NZ. A charged with conspiring to import and supply meth, but claimed defence of compulsion.
SC said that another way to interpret section 24 is to allow the defence if there was a high degree of coercion and the defendant had no practical alternative to compliance.
Nevertheless still came to the same result as DC/COA that because A and the cousin were in different countries at the time of the threat there was no immediacy nor presence, therefore compulsion was not available.
SC reinforced the narrow interpretation of section 24.
OBITER = section 24 does not explicitly require that a threat of harm be to the defendant –> covers threats to other people and family members (may not have to be directly threatened).
Kapi v MOT
1992, NZ
DURESS OF CIRCUMSTANCES
Man done hit and run after colliding with a parked car. Claimed duress of circumstances because he had an honest belief that if he stopped he would have been given a hiding due to being in a dodgy neighborhood at 11pm at night.
Held was not a reasonable belief because he had alternatives to him, his will was not overborne and no immediate danger as no one was on the street.
Set out that a person must have (1) a (honest) belief formed on reasonable grounds, (2) of imminent peril of death or serious injury and (3) in circumstances in which the D had no realistic choice but to break the law.
Held that duress of circumstances is a mixed objective and subjective test - must be an honest and reasonable belief.
Re A (Children)
2000, (UK)
NECESSITY
Conjoined twins were going to die unless operation undertaken to separate them, but only one could survive. Mary was self-designated for a very early death so she was chosen to be sacrificed for her sister.
Held that justified by necessity.
Distinguished from long standing precedent in R v Dudley that necessity cannot be used to justify death because in that case there was a choice / selected of whose live to sacrifice for others greater good. Whereas , here Mary was going to die anyway so wasn’t a selected between the two lives.
Held that necessity is available in limited circumstances where someone is destined to die anyway.
R v Kamipeli
1975, COA (NZ)
INTOXICATION
Mr K had been drinking and attacked by a man he though to be assaulting his friend. Victim died. Mr K claimed that he did not have murderous intent by reason of his intoxication.
Held that trial judge misdirected the jury on the standard of drunkenness required. COA held that it is left up to the jury to determine if there was an intention and intoxication is just one consideration.
The intoxication required to negate intention does not have to be blind drunkenness such that your actions are automated but just that you are not conscious of your intentions.
Convicted for manslaughter.
Kirby v R
2013, COA (NZ)
INTOXICATION
Mr K, whilst intoxicated, set fire to ex girlfriends house. He stated in evidence that he wasn’t too drunk and had only had a couple of drinks over a number of hours.
Held that MR could not be negated by intoxication.
Held that because he would recall a lot of details about the night and provided evidence that he wasn’t that drunk could infer that his consciousness of intent was not overborne by the alcohol. Thus MR not negated.
