DEFENCES - SELF DEFNCE and CASES Flashcards
Part 3 of the Crimes Act
refers to matters of justification or excuse
Section 2 of Crimes Act
defines a justification
Section 2 of Crimes Act definition justification
means they won’t be guilty of an offence and not liable to any civil proceeding (criminally or civilly liable) - means what you did was not technically a offence
what is an excuse
doesn’t mean what you did was lawful just that for some reason the law has an approach that means you will not be criminally responsible
Is an excuse a full defence
excuse is a partial defence
do justification and excuse result in acquittal
- Some justifications or excuses don’t result in acquittal but just results in a lesser sentence e.g., murder being reduced to manslaughter or infanticide.
section 48 crimes act
this section tells us we have a right to defend ourselves in such force reasonable to use.
what are the element of self defence as per s48
- Defence of yourself or another
- Force
- In circumstances as her believers them to be (subjective)
- Reasonable to use (objective)
section 62 crimes act
criminalizes excessive force
where doe the burden of proof lie for self defence
Evidential onus is on the defendant to show that their actions were in self-defense; if there is evidence suggesting self-defense, the judge must present it to the jury.
Once self-defense is raised, the Crown must prove beyond a reasonable doubt that the defendant did not act in self-defense or that the force used was unreasonable.
step 3 - Circumstances as believed to be by the accused cases
R v Terewi
R v Simpson
Graves v NZ Police
R v Terewi facts
T had a confrontation at a pub, then returned home. When the police knocked, he thought it was the person from the pub and said, “Fuck off or I’ll shoot you.”
He was convicted of threatening GBH but pleaded self-defense.
R v Terewi issue
is “force” limited to physical force?
R v Terewi held
no it is not limit to physical force, incudes threat
In the circumstances he believed himself to be in there was a violent aggressor at the door
Must be a mistake of fact and not law.
R v Simpson facts
Two brothers, heavily intoxicated, had a confrontation, leading to S being asked to leave but unable to due to his intoxication. The brother continued threatening S, who, feeling in danger, assaulted him and broke his eye socket. S pleaded self-defense against the charge of causing GBH with intent.
r v Simpson issue
Can intoxication be taken into account when considering the circumstances in accused POV?
r v Simpson held
Held that because s 48 circumstances are very subjective if perception is clouded by alcohol it must be taken into account.
What if the person has a phycological defect
R v Bridger
R v Kingi
R v Bridger facts
Beat v with a rake – unconscious
r v bridger issue
on appeal Came back and said he had a undiagnosed bipolar disorder
r v bridger held
No evidence provided that undiagnosed bipolar disorder affected subjective perception of danger;
Need to impact the perception of danger
R v Kingi facts
- dispute with brother over farm – charged with murder
- suffered chronic psychotic disorder
r v kingi held
A psychological defect that falls short of insanity is relevant to how the accused perceives the circumstances surrounding the incident.
Graves v NZ Police facts
G, intoxicated and unable to enter his home, broke a window to get inside. The noise disturbed the neighbors, who called the police. When the police entered, G, thinking they were intruders, pointed a laser gun at them. The police ordered him to put the gun down, but G replied, “This is my house; I’ll do what I want,” and pointed the gun again.
Graves v NZ Police issues
Was G entitled to rely on self defence?
r v graves held
no, couldn’t rely on sd
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.
was the person acting in SD
R v Howard
R v Howard facts
- Howard and another were fighting
H then started biting the victims chin “to prevent anymore attacks”
r v Howard issues
was this sd or something else
r v howard held
Self defense is concerned with preventing future possibilities - not retaliation
reasonableness of force used steps
1.imminence of the attack or anticipated attack;
- Nature and seriousness of the attack;
- was defensive reaction was reasonable and proportionate to the perceived danger;
- Whether there were alternative courses of action that could have been used
step one for reasonableness
1.imminence of the attack or anticipated attack;
cases
R v Ranger
R v Wang
what case developed the 4 steps for reasonableness
R v Afanasaga
R v Ranger facts
husband assaulted wife, she got kitchen knife, husband threatened to kill her and the son by blowing their heads off and reached under the bed to where she knew there was a gun. She stabbed his in the shoulder and he subsequently died.
r v ranger held
capable of providing foundation for SD - for jury to consider
r v ranger considerations
pre-emptive strike
the degree of danger is she thought she was going to be killed
Worried for the safety of her and her son as he had said he was going to blow their brains out
R v Wang facts
- Abusive r/s
- Victim threated to kill his wife and her sister
- After he went to sleep wife stabbed him
r v wang issues
- no imminent threat to life;
-alternative options;
to justify a pre-emptive attack,
- must be in real or crystallized danger
r v wang held
sd not avail on the facts
as when he was asleep there was no immediate threat or danger and there was alternative options
factor 2 of reasonableness
- Nature and seriousness of the attack;
R v Simpson
R v Simpson on seriousness
○ Assessed to the circumstances he thought he was in at the time
- His intoxication had led him to exaggerate in his mind the danger he was in
factor 4 for reasonableness
- Whether there were alternative courses of action that could have been used
r v wang
r v linadroos
McNaughton v R
factor 3 for reasonableness
- was defensive reaction was reasonable and proportionate to the perceived danger;
King v Police
R v Murray
R v Afamasaga
King v Police, facts
K, a young man with a broken arm, got into a conflict at a pub. After another man assaulted him and grabbed his neck, K smashed a glass in the man’s face, claiming self-defense. The District Court rejected this defense, but K’s lawyer appealed, arguing he felt threatened due to his age and injury, and instinctively used the glass.
king v police issue
was the act reasonable and proportionate to the perceived danger;
king v police held
yes the act was proportionate
limited options due in being seated and partly disable and smaller/younger
R v Murray facts
M girlfriend was being pushed by her brother, he got knife to scare the brother off, he was assaulted by his girlfriends brother and when he got free stabbed the brother and the brother died.
R v Murray issue
Was his use of the knife against an unarmed man a proportional response
r v Murray held
§ Relevant that brother was bigger, had karate skills and M was beaten up - therefore enough evidence for the jury to consider SD
what is relevant to consider for factor 3 about proportionality
size differences, fighting experience, sex
r v linadroos facts
- man had rented two bedroom sleepout, agreed to let someone else stay in, came home one night to find flat mate with guest which was against the rules of landlord. Flat mate assaulted L. After altercation L stabbed flat mate.
R v Lindroos issue
was there alternatives to the actions made by the defendant
R v Lindroos held
§ Held this was an act of aggression rather than SD.
there was other paths to take rather than stabbing
also the stabbing happened 20 mins after the assault
USE OF lethal force
R v Afamasaga
R v Afamasaga facts
The King Cobras gang anticipated a visit from their rival gang leader and planned to shoot him. Afamasaga acquired a gun and ammunition and acted as a lookout at the front of the property. When the rival gang leader approached within 10-12 meters, Afamasaga shot and killed him, resulting in the leader’s death at the scene.
R v Afamasaga issues
- Doesn’t sound like it was an unprepared defensive reaction
Premptive strike before any confrontation happened
Used lethal force
R v Afamasaga held
- Real or crystalized danger to do a pre-emptive strike
- Should aim to shoot in the leg instead of the heart in order to disable them
GANGS ARE SERIOUS
R v Afamasaga WHAT COULD BE LOOKED AT
s 62 excessive force and murder as knows likely to cause death
McNaughton v R facts
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”.
McNaughton v R issue
Is self defence available?
Is there a partial defence to excess force initiated by SD?
McNaughton v R held
no sd not avail
excess force was used to what was necessary
no need to apply partial defence because jury does it for us.
Defence of self or another …
R v Thomas
Dion v Police
R v Thomas facts
- witnessed police actively subduing person
intervened; (mistake - lawful arrest);
R v Thomas held
- SD extends to defence of strangers;
- Turns out they were resisting to being arrested so wasn’t self defences of another
Dion v Police facts
Dion’s chihuahua was attacking a neighbor’s chicken that had wandered onto his property. The elderly neighbor used a cane to try to stop the dog. Dion then took the cane and assaulted the neighbor, leading to his conviction for assault with a weapon.
Dion v Police held
There, the court found that the word “another” refers to another human being and not anyother creature/animals like a dog
Acting in defence of property or animal – might apply common law defence of necessit
