New Zealand Law/Criminal/SelfDefence

Requirements

1. Use of force or the threat of force in the defence of self or another.
2. Force that defendant believes in the circumstances to be reasonable.
3. Elements of the offence must require force.
4. The prosecution must first prove prima facie case involving mens rea.

R v Tavete

• Held

Judge must put defence to jury which is capable of being supported by evidence, even if for tactical reasons defence did not.

R v Ranger

• Facts

1. During argument with boyfriend, defendant stabbed and killed him.
2. Defence claimed provocation.
3. Defence did not raise self-defence although there was evidence that defendant believed boyfriend was going for gun and would shoot her and son.

• Held

1. If the accused really believed in threat, then it would be going too far to say that a jury could not entertain a reasonable doubt as to whether a pre-emptive strike with a knife was reasonable force in the circumstances.
2. It is sometimes tactically difficult for the defence to run 2 defences. It is, therefore, the responsibility of the trial judge to place before the jury any defence capable of being supported by the evidence.

R v Wang

• Facts

1. Husband passed out, D stabbed him 4 times.
2. Husband had threatened to kill her and family, and was also blackmailing sister.
3. On appeal, defendant said judge should have put self-defence to jury.

• Held

1. Impossible for jury to find that force reasonable in the circumstances, however a pre-emptive strike not always unreasonable.

R v Savage

• Facts

1. Savage was a patched gang member. He and others got into a fight with O’Leary. Savage stabbed O’Leary and fled.
2. Evidence was that O’Leary had been causing trouble all day.
3. Savage claimed self-defence or provocation.

• Held

1. When a knife is used, the accused must be under real threat, not merely think that there might be some future danger.
2. Whether a person should retreat from a fight depends on what is reasonable in the circumstances.
3. It is a misdirection to say either that (i) provocation must occur immediately before killing or (ii) that the def’s action must be proportionate to the provocation.

R v Thomas

• Facts

1. Police trying to arrest suspect.
2. Intoxicated defendant thought police were using excessive force, physically intervened.

• Held

1. Mistaken belief (that force used by police is unlawful) must be honest, need not be reasonable.
2. Mistake of fact.
3. Self defence available in defence of stranger.
4. Not confined to defence against unlawful assault.

R v Kneale

• Facts

1. Defendant left daughter with ex-wife to go fishing. On return, K and ex had fight. K assaulted wife.
2. Claimed self-defence - protecting daughter from wife.

• Held

1. Judge wrong not to direct jury on self-defence but the threshold for psychological injury is high (fear, panic or grief is not enough).
2. Misdirection made no difference. There was not enough evidence of threat, after all, he left daughter with ex-wife hours earlier to go fishing.

R v Howard

• Held

1. Self defence is not confined to situations involving threats of death or serious bodily harm.
2. The fact that there is another motivation, eg spite or anger, does not rule out self-defence. In Howard’s case, also had fear of future assault.
3. Force that is reasonable may not be proportionate (eg if accused has no real choice).

R v Bridger

• Held

1. It will often be necessary to assess whether defendant acting in self-defence by what accused did in response.
2. Court declined to opine about whether the circumstances - as the defendant believes them to be - must be based on a sane belief.
3. Trial judge may withdraw a defence from jury if it is impossible for a reasonable jury to regard accused’s reaction as reasonable. Withdrawal of a defence is not a denial of the right to trial by jury.