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.