Self Defence

Question 1

Difference between informal and formal defences

Answer 1

Informal Defence:

• putting the prosecution to proof.
• the accused did not commit the offence (AR and/or MR)

Formal defence:

• Available as a defence even though the AR and the MR of the offence has been committed.
• Specific defences - eg. due diligence
• General Defences - e.g. compulsion

Question 2

Formal defences:

Answer 2

•Justifications: Although the act was technically criminal it was not wrongful. Example- self defence

•Excuses: The act was wrongful but for reasons personal to the accused we should not blame them. Example - compulsion

Question 3

Complete Versus Partial Defences:

Answer 3

Complete defences: Result in an acquittal
•Eg self-defence, necessity, compulsion, automatism. Note: that insanity results in a “qualified acquittal”

•Partial defences: Attach to a specific offence and result in a conviction for a lesser offence (ie reduced criminal culpability)
•New Zealand has no partial defences to murder since the abolition of provocation in 2009.

Question 4

Self-defence:

Self-Defence:

Answer 4

uA complete defence: acquittal
uA general defence
uWidely considered to be a justification
uAn example of a self-preservation defence (see also duress and necessity).
uBut also extends to the defence of others.

Question 5

Essence of the defence:

Answer 5

A person is attacked and has no legitimate means of dealing with the attack. They should be entitled use as much force as they need to defend themselves or someone else.

Question 6

Rationale for the Defence:

Answer 6

uHuman instinct to self-preservation
uUnjustified aggressor
uConfined to only what is necessary to defend yourself

Question 7

Section 48:

Answer 7

“Everyone is justified in using in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”

Not whether the victim used force → if someone comes at me and i defend myself → can only claim self defence if i use force in defending myself →

Question 8

When is the Defence available?
-threshold criteria:

Answer 8

Self-defence is only available as a defence where the accused has been charged with an offence involving “force.”
“Everyone is justified in using … such force as… it is reasonable to use.”
- Jenkins v Police (1986) 2 CRNZ 196 (HC)

Threshold question of force → whether the accused was claiming

Jenkins v Police → defending woman who was next to him → he threw a milk bottle at a person → charged with disorderly behaviour → claim was defending person who he was with → disorderly behaviour does not require you to use force → Court said he used force when defending his companion → and even though the provision did not require force he was entitled to argue self defence.

Question 9

What amounts to “force”:

Answer 9

uActual use of physical power - includes threats to use physical power
R v Terewi (1985) 1 CRNZ 623
uDoes it include property damage?
R v Hutchinson [2004] NZAR 303
Leason v Attorney General [2013] NZCA 509

More complicated when pertaining to threats → can also be threats not just physical force → terewi → had issue with person at hotel bar → later two people came to his house, he thought it was people from the hotel → told them to leave otherwise he would shoot them → it was actually two police constables →

They told him it was the police, and would send the dogs → and he was charged with threatening grevious bodily harm → he claimed self defence → defending himself from the threat he thought he was threatened with from people earlier → Court said threat to shoot the police officers met the criteria of force → so not just the force, but also the threat to use my that force.

Hutchinson → the accused used crowbar to go into property and destroy property → court held that entering premises and destroying property did not amount to force and so could not rely on self defence.

Further supported in Leason v Att → protesters in Waihopai → arguing information was aiding war overseas, and claimed self defence on the basis on the threat to people that would die overseas → and they damaged the dome covering security —> and they argued self defence in damaging the dome → Court did not accept that → CA left open the question and possibility that damage to property in some circumstances may amount to force → have not seen a case yet where damage to property has met the threshold for self defence.

Question 10

What does not amount to “force”:

Answer 10

uPossession:
Tuli v Police (1987) 2 CRNZ 638 –
Facts: Accused found with a crowbar in his hand in a carpark- claimed he had it for self defence

Tuli → in carpark when fight in bar broke out, fight between black power and mongrel mob, they were not in gang, and did not want to be involved → his cousin unintentionally came involved → Tuli came to his aid → tried to exit carpark → Tuli picked up crowbar and said he was using it as self defence → and wanted to get out without further problems → by the time he had crowbar the police came → charged with 202A assault with deadly weapon → it is an offence to be with a deadly weapon, when there is a prima facie assumption that they may use it → but if you can show that you werent going to use it for that purpose then you have a defence → and Tuli argued this

He said he intended to use it for self defence not 202A → Trial Judge → considered that it did not qualify as force, so self defence was not open to him so guilty of the offence →

The HC said → had he been threatened would have used the crowbar to deter others → and therefore self defence → so therefore 202 (5) for a defence → only holding it to deter others

R v Busby → knife → and said Tuli and police is wrong → the weapon is in possession at the time the intention is formed → and at that time you cant say you have a defence of self defence because no force used → and cant satisfy 202A (5) →

Had he actually used force → he would have been in a Tuwiri situation where the threat of force would have been enough → so fell within a gap.

So when pick up something and say self defence → cant carry a weapon around and argue its self defence.

Another case asked whether driving amounts to force.

Hocking → appelant at home and had some drinks → her ex partner came around and was being a ‘bit of a pest’ , she asked him to leave. He climbed back in window, and refused to leave . → then hopped in her car then phoned the police → he left the house → and she started driving away in car → he started following her in his car → and then when she stopped he pulled beside her and opened door → she was worried for her safety → and she drove into his car a few times.

She then drove home to police from earlier call for distress → then they breathalysed her, charged with excess breath alcohol and driving recklessly.

Argued self defence → and Court had to determine was driving car a use of force → so didnt have a defence of self defence → so if driving away from something cannot claim self defence in our current law.

A passive obstruction does not amount to force → blockading premises by blocking access to abortion clinic was not force → so cant claim self defence.

Only available when you have deliberate application of force → when there is accidental blow → or in bonnet of car and collided with other → cant argue accident → because no use of force.

Deans v Police → pushed a security guard and ended up pushing him through a window → court said he could raise in the action of pushing security guard → and that was reasonable in those circumstances but it was not clear he was going to push him through window → so no self defence.

Question 11

S202A Possession of offensive weapons or disabling substances

Answer 11

(4) Every one is liable to imprisonment for a term not exceeding 3 years—
…(b) who has in [their] possession in any place any offensive weapon…in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat… of violence.
(5) It is a defence … if the person charged proves that [they] did not intend to use the offensive weapon… to commit an offence involving bodily injury or the threat … of violence.
Note: s202A (5) creates a specific defence- does that preclude self defence?
Compare to R v Busby CA211/01, 25 September 2001

Question 12

What does not amount to “force”:

Answer 12

uDriving:
Hocking v Police [2012] NZHC 3192
uObstruction-passive actions (blocking):
- Bayer v Police [1994] 2 NZLR 48 (CA)
uAccidental Force:
Note: Deans v Police HC Christchurch AP7/87, 5 March 1987.

Question 13

Elements of s48:

Answer 13

s48 “Everyone is justified in using in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”
Three Elements were affirmed in R v Bridger [2003] 1 NZLR 636 (CA)
(1) What were the circumstances as the accused genuinely believed them to be? (Subjective Test)
●
(2) In those circumstances was the accused acting in defence of self or another? (Subjective Test)
(3) Was the force used reasonable in the circumstances? (Objective Test)

S48 → codifies the common law.

Queen and Bridger → the main case for self defence

Have to think of whether acting in defence of someone or other in the context you believe them to be → what were the situations they genuinely believed themselves to be

First question → what were the circumstances that they genuinely believed themselves to be → subjective tests —> what was happening in their head → and then that context → was the force that they used in the context they were in, → reasonable → so then it becomes objective.

Question 14

Burden and Standard of Proof?

Answer 14

If the evidence (either adduced by the Crown or the defence) gives rise to a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self defence, then the defence of self defence must go to the jury to be determined.
Ø Whether the defence is a live issue, is a question for the judge.
Once the defence of self-defence becomes a live issue, the burden of proof then falls on the prosecution to negate the defence as a justification for the accused’s use of force. This means the prosecution must prove beyond reasonable doubt that:
(1) the actions were not undertaken in self-defence, or
(2) that the force used was not reasonable in the circumstances as the accused believed them to be.

Self defence → once evidential burden is established → either crown or defence.

When there is a credible or plausible case then self defence is a valid issue → then crown has to prove beyond reasonable doubt that the defendant did not act in self defence.

It is a question of law → so the judge decides.

Then goes to jury who ascertains whether they have met burden of proof.

Question 15

(1) What were the circumstances as the accused believed them to be? (subjective):

Answer 15

A. Mistaken belief?
uAccused entitled to benefit of his or her subjective assessment of their circumstances even if mistaken.
McKay v Police [1997] 3 NZLR 199.
B. Reasonableness of the Belief?
uThere is no requirement that the accused’s belief be reasonable so long as it is genuine
R v Bridger [2003] 1 NZLR

C. Intoxication?
Simpson v R [2010] NZCA 140
D. Impact of Psychological Disorder
uQuery whether expert evidence about mental disorders should be allowed:
R v Bridger (2002) 19 CRNZ 676
R v T [2018] NZHC 2467
Press v R [2013] EWCA Crim 1849
R v Oye [2013] EWCA Crim 1725
R v Martin [2001] EWCA Crim 2245

Court recognises in these situations hard to look at it in hindsight → what force you should use in circumstances → because confrontations are high pressure altercations → Court said provided the mistake is genuine then that is enough because it is purely subjective

Mckay v police → randomly attacked by guy on way home → assailant was intoxicated → accused punched on the face, started clutching on leg, and Mckay thought he tried to continue assault so hit him a couple more times → The Court asked were the two further punches acceptable?

Court said → although he was mistaken, he genuinely believed the attack was continuing so had a right to have judgement on self defence.

Reasonableness? Is it a completely outrageous mental formation? → does not HAVE to be believable → as long as it is genuine, provided the evidence is believed → can rely on circumstances you believed you were in.

Potential credibility of witness for jury → does not affect he subjective element test.

Bridger case → dispute between bridger and his inlaws → thought was under threat when his 53 year old mother in law → he thought he was under threat, and attacked her with rake → needed 25 stitches to her face → jaw cracked etc. → he thought he was under attack and responded in what he thought to be reasonable

Judge said no plausible narrative here → not enough evidence to assume any suggestion → so did not believe his statement → so withdrew it from even going to the jury → and this was affirmed in the appeal which was on the effect of psychological conditions.

Not a NZ CASE → 60s case → followed suspected terrorists to Gurnsey → evidence was they thought these suspected terrorists were going to detonate a bomb → when you wanted to turn radio on had to raise aerial on car (in 60s) → the aerial came up → observing terrorists → they thought they were about to detonate with radio → to connect with aerial → so they shot them and killed them

The circumstances that you believed them to be was a bomb being detonated so it was reasonable in the circumstances, even if it was mistaken → we believe you so evidence is reasonable so we give you self defence → The Court said this → the extent to which the subjective test can be taken.

IN NZ Simpson v R → if accused subjective perception is clouded by alcohol → can be taken into account in terms of looking at the circumstances they believed they were in → so if drunk and mistake the circumstances you think you are in → will be considered in whether your evidence is believed.

More often than not it is unreasonable → they go to far for example → so defence is not met because they don’t meet the third criteria.

Martin → shot two burguluars who entered premises, hurt one, killed other → rejected his self defence and convicted for murder → retrial had a subjective personality disorder where a person breaking into house can be perceived differently and more seriously.

And this was considered in seeing whether the force he used in the circumstances were reasonable → the subjective state could be taken into account.

There is a defence of diminished responsibility. → the key takeaway → the accused perception, mental disorder is not determinative, but can be taken into account → left the law open.

Question 16

E. Do the circumstances include the options for defusing the threat?:

Answer 16

R v Wang (1989) 4 CRNZ 674
Fran Wright “The Circumstances as She Believed Them to Be” [1998] 7 Waikato Law Review 109.
McNaughton v R [2013] NZCA 657
(1) Did the defendant know he had other options available to him?
(2) Were those options reasonably available to him in the time that he had to react?

Wang → when looking at circumstances thought they were in → does this include their perceived or actual options to diffuse the threat? → to what extent when in circumstances → should we be looking at options to remove themselves or diffuse the threat.

Wang → accused stabbed husband when in drunken state → threatened to kill her and sister, and threatened to blackmail another sister in Hong Kong → significant evidence of bad abuse in the marriage → The Court when looking at circumstances → she honestly believed that family was under serious threat → but was in future → and was not reasonable because there were alternative options for her to take.

Sister and friend Susan was in house, could have left house, police etc. → alternative options.

Understanding about intimate partner violence has evolved as this is an old case and this case has been criticised.

She thought she had no other options, she was isolated, could not speak english etc. → preemptive strike thought was the only options she had → Court said so many other options and you were not acting in self defence.

McNaughton v R → when looking at subjective test → also have to take into account → what other options are available and are they reasonable available to him in the circumstances → what are the other options available? →

If you have other options to not respond then you are not acting in self defence → adding in some elements of objectiveness → but these tests are subjective.

In Third test → have to see reasonableness in their circumstances.

Motive can come into consideration → but cannot be acting vengefully providing predominant response is self defence → if you just act to retaliate, if that is the only reason → cannot rely on the fact of self defence.

If accused is relying on self defence, does not show any fear → that does not negate self defence, or acting for someone else → even if someone is emotionally calm, or brave → can still be acting in defence of someone else

Question 17

(2) In those circumstances was the accused acting in defence of themselves or someone else? (subjective):

Answer 17

A. Was the defendant reacting defensively?
●
R v Howard (2003) 20 CRNZ 319:
“…self-defence is concerned with meeting future possibilities. It cannot solely take the form of retaliation for past grievances. But it may well be the case that someone who is angry or spiteful may also fear a future assault. Any such additional mindset would not prevent the accused from availing herself of the defence.”

qS48 makes it clear that self defence is not limited to the defence of oneself- it includes protection of “another”
q
qCan defend yourself or another against a verbal threat: R v Terewi
q
qCan defend yourself or another against a threat of psychiatric injury: R v Kneale (1997) 15 CRNZ 392

When acting in defence of someone else → there does not need to be familiarity between the person being defended → Tuwhiri → makes it clear that a verbal threat amounts to force.

Can defend someone else from psychological harm → Courts say defending from psych the threshold is high → more than distressed or high emotionality.

Kneale case → husband claimed self defence when assaulting wife, when she was trying to remove young daughter from house, and was frightened for safety of child → threat of psychological harm → claimed he was acting in defence of child → Court accepted this → he was entitled to claim self defence → failed in the sense that the force he used was not reasonable.

But nonetheless the defence was available to him even though the threat was psychological.

Question 18

(3) Was the force used by the accused reasonable in the circumstances that the accused believed existed? (objective)

Answer 18

Afamasaga v R [2015] NZCA 615 at [50]:
“Whether the force used was reasonable, will require consideration of the perceived imminence and seriousness of the attack or anticipated attack, whether the defensive reaction was reasonably proportionate to the perceived danger and whether there were alternative courses of action of which the [the defendant] was aware.”
Reasonableness - question of fact not law, so it is a question for the jury

Third question → was it reasonable in the circumstances the accused thought he would be?

Subjective belief the accused had.

Gurnsey case (UK) → shooting people who raised aerial in car seems unreasonable → but thought it was a bomb → so have to see what circumstances was reasonable for the accused → what they thought they were in.

How do we decide reasonableness? → bringing in alternative course of actions that should be brought into the subjective question.

And also whether it was reasonable → did the person really act in the self defence and did they do what was necessary and reasonable to defend themselves (basically).

Afamasaga → four considerations that are relevant are proportionality, necessity, option to retreat, and imminence.

Brookbanks (scholar) → the four things are just in melting pot of reasonableness, as there is a lot of overlap between the four.

Question 19

Palmer [1971] AC 814 at 831-832:

Answer 19

“If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence.”

Courts recognise that you cant weigh these things to a nicety → because the threat is imminent and a high intensity situation → people act instinctively sometimes.

Will often be desired to remind the jury → give proper weight to predicament of the accused → no calm deliberation or

Question 20

Zecevic v DPP (1987) 162 CLR 645 at 662-663:

Answer 20

“No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.”

Question 21

Section 62:

Answer 21

“Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.”
uIf Adam attacks Barry with his fists and Barry shoots Adam and Adam dies, if Barry claims self-defence and is not successful, Barry is criminally liable for the death of Adam.
uNo defence if excessive self defence is used

Because if you use too much force → excessive force → Taueki case → excessive force is mitigating in sentencing

But hard to be acquitted → as section 62 says you become liable for the offence with excessive force.

The force you used was not reasonable and you become liable for the death → reasonableness of the force is very important.

Question 22

A. Proportionality:

Answer 22

uYou cannot shoot someone to stop them stepping on your toe, even if that is the only way that you can prevent someone from stepping on your toe.
Mafi v R [2014] NZCA 408

So should only do what is reasonable and necessary to defend yourself even considering niceties.

For example if someone steps on your foot you cant shoot them → idea of proportionality.

Cant just use any means to protect yourself → Court will look at what is proportional or necessary in the circumstances you believe them to be.

But does not need to be an absolute balance → if someone attacks for example and bigger than me, grab something, a gun, and then shoot them → if that was only means i had to protect myself than that can be considered proportionate.

Wouldnt normally be proportionate but circumstances change the scenario showing the subjective circumstantial nature of the test.

-

Question 23

B. Necessity:

Answer 23

uNecessity: you cannot shoot someone in the heart if it is possible to disarm them by shooting them in the leg.
u
uDuty to retreat? Not in s 48 but hard to argue it was reasonable in self-defence if you could have left. On the other hand you do not have a duty to avoid circumstances that might be dangerous.

Should only ever do what is necessary to defend yourself → repelling force with force that is necessary.

Duty to retreat overlap.

Necessity → mischief prevented could not be prevented by less violent means → overlapping with the duty to retreat.

Afamasaga case → in assessing the reasonableness, is there other options which make the scenario unreasonable? → what other options? → was the way they reacted necessary?

Question 24

C. Duty to Retreat:

Answer 24

uDuty to retreat? Not in s 48 but hard to argue it was reasonable in self-defence if you could have left. On the other hand, you do not have a duty to avoid circumstances that might be dangerous.
R v Savage [1991] 3 NZLR 155

Duty to retreat → viable option? → Norton (scholar) –. Other options?

R v Savage → Court looked at option to retreat → no absolute requirement in s48 → but hard to argue acting in self defence, if have the ability to walk away but decide to stand and fight.

Savage was a senior gang member, in bar, and gang prospects, interaction earlier where someone pulled out knives, and others pulled out bigger knives → prospects were having a hard time → savage being senior had iobligation to protect prospects → he got into scuffle with oleary → and he pulled a knife → he retaliated → there was one blow → and he killed him

No evidence that oleary had knife → but prior to fight savage asked for knife from someone else,

Court said cant claim self defence → when you are inviting the very fight you are supposedly defending yourself against → by asking for knife instead of retreating you cant claim self defence. → so was convicted of murder.

Question 25

D. Imminence: pre-emptive strikes:

Answer 25

R v Wang [1990] 2 NZLR 529
“In our view what is reasonable under the second limb of s48 and having regard to society’s concern for the sanctity of human life requires, where there has not been an assault but a threatened assault, that there must be immediacy of life threatening violence to justify killing in self defence or the defence of another.”
ØIf one is not facing immediate danger then one can normally deal with the danger by an alternative course of action (retreating, calling the police etc)
ØIt is only when an attack is imminent that you know that it is serious.

Wang → came up because she had options other than that.

Act was a preemptive strike that was not done in self defence → because there was no imminent threat she could not claim self defence → and she had other options from her.

Defending yourself from a situation where you have no other option but to do that → only when threat or attack is imminent when you can say it is serious.

In the Case of Wang → she did not speak English → abused in marriage → was immigrant to NZ → evidence that there had been problems with authority in China → distrust of authority

Nevertheless Court said she had other options → no imminence or serious attack → had duty to retreat and option to retreat not withstanding the circumstances.

Court left open preemptive strike → there still has to be this element of imminence → cannot have a preemptive strike if there is no imminent threat to strike against.

At what point did the victim prevent an unlawful act from occurring → so looking at that to determine imminence → and whether you acted out of necessity.

Question 26

Lavallee [1990] 1 SCR 852:

Answer 26

uRelational context of abuse means that you have to understand the accused’s state of mind in terms of the cumulative effect of months or years of cruelty.
uCyclical nature of abuse means that it has a degree of predictability which is absent in one off encounters. It may be possible for a battered wife to accurately predict the onset of violence before the first blow is struck, even if an outsider the relationship can’t.

Lavalleee → In jurisdictions such as Canada and US → willing to cover self defence in highly abusive relationships and preemptive scenarios → women do not need to wait for deadly attack → this case is from Canada.

Lavallee case → partner was in volatile relo → shooting in back of head as he left the room, had argument → had been physically abused → he taunted her with the threat that either you kill me or i will kill you → been a past victim of very serious attacks → she then shot him in the back of the head and claimed self defence.

The defintion of what was a reasonable response to the apprehension of death → must be adapted to circumstances that are sometimes unreasonable for the hypothetical reasonable person →

When you have a judge who has no experience of trauma in relation to IPV → making the decision as to whether self defence should go to jury →

Question 27

Lavallee:

Answer 27

u“Even accepting that a battered woman may be uniquely sensitised to danger from her batterer, it may yet be contended that the law ought to require her to wait until the knife is uplifted, the gun pointed or the fist clenched before her apprehension is deemed reasonable…I do not think it is an unwarranted generalisation to say that due to their size, strength, socialisation and lack of training, women are typically no match for men in hand-to-hand combat. The requirement imposed in Whynot that a battered woman wait until the physical assault is “underway” before her apprehensions can be validated in law would, in the words of an American court, be tantamount to sentencing her to “murder by instalment”.”