Contents

Chapter 3
The current law

Self-defence

3.4Self-defence is provided for by section 48 of the Crimes Act 1961:

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

3.5Self-defence represents a balance between the needs of an ordered society (in which people are generally not permitted to use force and “take the law into their own hands”) and the right of individuals to ensure their own protection where the State cannot.132 It does so by providing that people have a right to defend themselves against violence or threats of violence, so long as the force used is no more than is reasonable for that purpose. The fundamental principle underlying self-defence is necessity – the degree of force used is justified because no alternative is available to the defendant in order to protect themselves (or another).133
3.6Self-defence is a general defence. It can apply to justify the use of force by any person against almost any form of attack or threat to that person or any other, and is not limited to defence against unlawful assault.134
3.7It is for the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence, and a defendant may be discharged if no jury could properly exclude self-defence. However, before self-defence goes to the jury, there must be evidence of a credible or plausible narrative that might lead the jury to entertain the reasonable possibility of self-defence.135 It is for the judge to determine, on the view of the evidence most favourable to the defendant, whether there is sufficient evidence to leave the defence to the jury, and self-defence must be left unless the judge is satisfied that it would be impossible for the jury to entertain a reasonable doubt.136
3.8It is well established that section 48 involves three inquiries:137
(a) What were the circumstances as the defendant believed them to be at the time?
(b) In those circumstances as the defendant believed them to be, was the defendant acting to defend himself or herself or another?
(c) Given that belief, was the force used reasonable?
3.9The first two inquiries are subjective. The defendant’s belief need not be reasonable, although the fact-finder may be sceptical of the genuineness of an unreasonable belief.138
3.10The third inquiry is objective, although it is applied to the defendant’s subjective view of the circumstances.139 While section 48 is silent regarding how the fact-finder should determine whether the defendant’s use of force was reasonable, three related concepts have developed through case law. These are:140
(a) the perceived imminence and seriousness of the attack or threatened attack;
(b) whether there were alternative courses of action reasonably available of which the defendant was aware; and
(c) whether the defensive reaction was reasonably proportionate to the perceived danger.
3.11R v Wang remains authority for the need to show that the defendant was under imminent threat in order to rely on self-defence. In that case, the defendant was an immigrant from China who was charged with the murder of her husband. On the night of the homicide, the deceased threatened to kill the defendant and her sister, who lived with them. He then went to bed in an intoxicated state. The defendant tied him up while he was unconscious and then killed him with a knife. At trial, a psychiatrist gave evidence that, in her mental state, the defendant would have believed that the threats of her husband would be carried through and that she could not see any alternative to the use of force. The trial judge withheld self-defence from the jury, finding that “the only view of the evidence open is that the accused was in no immediate danger” and accordingly that it was impossible for the jury to entertain a reasonable doubt on this point. The Court of Appeal upheld that decision, stating:141

It is accepted that in the context of self-defence “force” includes not only the use of physical power but a threat to use physical power. But what is reasonable force to use to protect oneself or another when faced with a threat of physical force must depend on the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force. There may well be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately. If so, it will not be reasonable to make a pre-emptive strike.

3.12The Court of Appeal considered Wang in the recent case of Vincent v R. In that case, the defendant had appealed the trial judge’s decision to withdraw self-defence from the jury. While the situation in Vincent was very different to the circumstances faced by the defendant in Wang,142 the Court of Appeal confirmed:143

While the imminence of the threat is not treated as a distinct or separate requirement, the authorities have emphasised that the imminence or immediacy of the threat is a factor that is to be weighed in assessing whether the defence is available. This is a question of fact and degree. Amongst other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action are to be considered. The defendant must have seen himself or herself as under a real threat of danger and not merely believe there may be some future danger.

3.13The Court of Appeal went on to consider the defendant’s claim of self-defence against the concepts of imminence, lack of alternatives and proportionality. It upheld the trial judge’s decision, finding:144

On the facts, taking the most favourable view from Mr Vincent’s perspective, there was no realistic possibility that the jury could entertain a reasonable doubt that Mr Vincent was acting in his own defence or in defence of Mr Pratt within the terms of s 48. We reach that conclusion for these reasons. It may be that Mr Vincent genuinely believed it was necessary for him to take the actions he did in the circumstances as he believed them to be. However, his actions could not be described as being taken in defence of himself or Mr Pratt. Neither was facing any imminent threat of force from Mr Stoneham. The incident involving the basketball and the ensuing scuffle had taken place some four days previously and there had been no material conduct on Mr Stoneham’s behalf since that time that could have increased Mr Vincent’s concerns that he was under imminent attack. His actions are more accurately described as retaliatory in nature.

Significantly, Mr Vincent had a range of options reasonably available to him other than taking the action he did. He may have believed that the Corrections personnel at the prison were not taking adequate steps to secure his safety but he had the opportunity, for example, to seek the assistance of the Corrections officers and be placed in the separate regime that had existed in the period between 24 and 28 August. He had effectively removed himself from this separate regime and placed himself back into contact with Mr Stoneham. Finally, his actions in stabbing Mr Stoneham four times in the neck could not possibly be seen as a reasonable or proportionate response to a perceived threat of attack from a basketball in the exercise yard.

3.14The concepts of imminence, lack of alternative options and proportionality in relation to victims of family violence who commit homicide are discussed further at Chapter 5.

132Law Reform Commission of Ireland Defences in Criminal Law (LRC 95, 2009) at 26.
133Mark Campbell “Pre-Emptive Self-Defence: When and Why” (2011) 11 Oxford University Commonwealth Law Journal 79 at 80. For example, in Osland v R (1998) 75 HCA, 197 CLR 316 at 342, Kirby J did not consider that the defendant’s actions were “reasonably necessary to remove further violence threatening her with death or really serious injury”.
134Simester and Brookbanks, above n 129, at 507.
135R v Wang [1990] 2 NZLR 529 (CA) at 534; R v Tavete [1988] 1 NZLR 428 (CA) at 430; R v Kerr (1976) 1 NZLR 335 (CA) at 340; Adams on Criminal Law at [CA48.17].
136R v Wharerau [2014] NZHC 1857 at [8]; R v Wang, above n 135, at 534; R v Tavete, above n 135, at 431; R v Kerr, above n 135, at 340.
137R v Li [2000] CA140/100, CA141/100 at 6; Fairburn v R (2010) 44 NZCA (CA) at [34]; R v Wharerau, above n 136, at [4]; R v Ford HC Auckland CRI-2010-044-000132, 22 July 2011 at [19].
138Law Commission Battered Defendants: Victims of Domestic Violence Who Offend (NZLC PP41, 2000) at 11.
139At 12.
140Adams on Criminal Law, above n 135, at [CA48.08].
141R v Wang, above n 135, at 535–536.
142In Vincent, the defendant was a prison inmate, charged in relation to the stabbing of another inmate four times in the neck. The attack followed an incident on the exercise yard four days earlier, where it was alleged the victim deliberately kicked a basketball towards the defendant. The defendant claimed he was acting pre-emptively in self-defence in response to a threat of future violence from the victim.
143Vincent v R [2015] NZCA 201 (CA), at [28]-[29].
144At [32]–[33].