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THE CIRCUMSTANCES AS SHE BELIEVED THEM TO BE:
A REAPPRAISAL OF SECTION 48 OF THE CRIMES ACT 1961
According to section 48 of the Crimes Act 1961, “[e]veryone 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”. This provision is subjective, in that the “circumstances” are viewed through the defender's eyes. The question is what the defender believed was happening rather than what was “really” happening. If she believed that she was about to be killed, her self-defence claim is assessed as if she really was about to be killed. However, when her response to this threat is considered, there is an objective test. It is not enough for the defender to say that she believed her reaction was reasonable: she must have used an amount of force that would have been reasonable had the circumstances been as she believed them to be.
The subjective test is important in cases of mistake, where there is a difference between the circumstances as the defender saw them and as they “really” were. However, courts have sometimes failed to take a relevant mistake into account. They have applied section 48 correctly in cases of mistake about whether a threat exists or about how serious a threat is. They have not usually looked at the defender's own beliefs about whether it is possible to escape from an aggressor or about whether non-violent options are available. Assessing a defender's use of force as if she was able to make use of all the options that were actually available, without allowing for any mistakes that she might have made about those options, is contrary to the words and the spirit of section 48. Any belief about a fact upon which the objective reasonableness of a defender's response depends, is a belief about the circumstances for the purposes of section 48, and the defender should be treated as if that belief was correct.
The approach taken in this article is to treat the issue as one of statutory interpretation: what do the words of section 48 mean? The validity of the honest belief test will not be questioned. To do so would distract from the very real problems of interpretation posed by section 48. Because of the way in which the issue has been defined, there will be little reference to the theoretical literature on self-defence. The dominant approach to self-defence among philosophers and criminal law theorists rejects the honest belief test in force in New Zealand: indeed, they express doubts about the validity of the reasonable belief standard that applies in most common law jurisdictions.[1] For this reason the preoccupations of the theoreticians are not the same as those of the criminal lawyers, and their writing does not deal with the questions posed in this article. The majority of material referred to will therefore come from “mainstream” criminal law.
Self-defence justifies a person's use of force. This means that the person who meets the requirements of section 48 has acted lawfully. For this reason, the burden of disproving self-defence lies upon the Crown.[2] This does not mean that self-defence must be negatived every time a person is charged with a crime of violence; the rule is that self-defence should be put to the jury only where the evidence as a whole establishes a “credible narrative”, one that leaves open a reasonable possibility of self-defence.[3]
According to Hammond J,
Self-defence involves three elements. The first is whether the force used by the accused was in defence of himself. The second is an inquiry as to the circumstances as the accused believed them to be. The third inquiry is as to whether the force used was reasonable in the circumstances as the accused believed them to be.[4]
These elements will now be considered in more detail.
Self-defence is available only to those whose intention in using force is to defend themselves. If the reason for causing that harm is something other than defence, the fact that the victim was an aggressor does not make the defendant's actions lawful.[5] However, an intention to kill or cause some lesser degree of bodily harm is not inconsistent with self-defence.[6]
The second inquiry is the subjective phase of the defence. This phase is unnecessary if “the circumstances” and “the circumstances as she believed them to be” are the same. However, where a mistake has been made, the defender will be treated as if this aspect of the circumstances was as she believed. It does not matter that her mistake is unreasonable or that it is the result of intoxication.[7] The subjective test is illustrated by McKay v Police.[8] McKay was attacked by Scott and responded by punching him. This broke Scott's jaw, and Scott fell to the ground. He was clutching McKay's leg, trying to pull himself up, but McKay did not realise that Scott was injured and thought that the attack was continuing. He therefore hit him again. McKay was initially convicted of assault because the second series of blows were unnecessary “in that [he] knew that Mr Scott was suffering the effects of alcohol and that he had been put down by a blow to the jaw”.[9] McKay's appeal succeeded. If the circumstances had been as he believed them to be, the fight had not come to an end and it was not unreasonable to continue defending himself.[10]
Whether the force used by a self-defender is reasonable depends on whether it was reasonably necessary to use force and on whether the harm caused was reasonably proportionate to the harm sought to be prevented.
Whether force is necessary is answered by asking whether the steps taken were the minimum that would be needed to stop the attacker. The ability to retreat is relevant to whether the response was necessary but there is no legal duty to retreat.[11] It can be reasonable to use force before a threatened attack is launched. A person who is facing a knife is not expected to wait until the knife has been used on her: it may be necessary to pre-empt the attack.[12]
Proportionality refers to the relationship between what is stopped or averted and the force used to stop or avert it.[13] Killing is likely to be disproportionate unless the threat is itself of death or very serious injury. The courts do not apply a strict proportionality test, however:
...a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. [14]
In considering whether a defender's use of force was reasonable, therefore, it is necessary to look at what was threatened and what the defender could do about it. Submission, flight, or calling for help might be more appropriate than using force. The problem is that a defender's beliefs about whether flight or assistance would be possible or effective might be mistaken. It is not clear whether section 48 requires the court to treat the defender as if these beliefs were correct. Most mistake cases are concerned with mistakes about whether a threat exists and the courts have not dealt with mistakes about alternatives to using force in a consistent manner. This is the difficulty with the section with which this article is concerned.
Subjective beliefs about the availability of assistance were taken into account in Crowe v Police.[15] Crowe and some friends were set upon by an older group. Crowe managed to push off his assailant and went to assist his friend, Mokomoko, using the metal liner of a rubbish bin as a weapon. The trial judge found that Crowe's actions were unreasonable: the police were nearby and Crowe should have gone to them for protection for himself and his friend rather than using force.[16] Crowe's appeal succeeded. Williamson J emphasised Crowe's view of the circumstances. He had said that when a police car drove by, “he and his friends whistled out and shouted to try and get them to stop, but that it went on and he did not know whether the Police had heard them or not”.[17] If the police had just refused to stop and assist, it was not unreasonable to resort to self-help, so Crowe's response was a reasonable one.
However, beliefs about whether assistance is available have not been treated in this way in other cases. Mistakes that a reasonable person would make in the same situation are taken into account when the objective reasonableness of force used is assessed, but other mistakes are ignored. This can be seen by comparing two cases, Jenkins[18] and Wang.[19]
Jenkins and his friends were ejected from a nightclub after a dispute with another group. They were followed onto some steps. Jenkins was punched but managed to escape; his friend Marie was less lucky, becoming trapped further up the steps. Marie was screaming and yelling; Jenkins threw a milk bottle in the direction of the assailants and they retreated a little. The police then arrived and arrested Jenkins. His answer to a charge of disorderly behaviour was that he threw the bottle in defence of Marie, but the District Court Judge thought that this was unreasonable and convicted him. On appeal, McGechan J disagreed:
I can infer readily enough that by the time a telephone had been found at that hour on a Saturday night or a patrol car located and the police arrived the feared injury may well have occurred and that would have been evident to [Jenkins]. That was not a realistic option.[20]
The trial judge’s failure to take the difficulty of finding a police officer into account was an error; the High Court regarded this as an important part of “the circumstances”. This case seems to be an example of a mistaken belief about the availability of assistance being taken into account, but the way in which it was done was not the same as in Crowe.
McGechan J started with how he saw the situation himself and finished with the assumption that that must have been how Jenkins himself saw it. The implicit question was not “what did Jenkins believe about the availability of police assistance” but “what would a reasonable person have believed about the availability of police assistance”. This is not, therefore, a fully subjective approach: if it was, Jenkins’ views would have taken centre stage and what the judge thought would have been irrelevant.
This did not make any difference to the outcome because the judge clearly thought Jenkins’ mistake was reasonable: it was a belief the judge himself would have held in the same circumstances and McGechan J defined “the circumstances” for the purposes of section 48 to include the apparent non-availability of police assistance. This approach does not always produce the same result as a wholly subjective approach, however: a problem arises if the defender’s beliefs are not reasonable.
Wang was convicted of the murder of her husband Li. On the night of the homicide they had a party. Li became very drunk and forced Wang to telephone Hong Kong and demand money from family members. He made other threats as well, but eventually went to bed, where he passed out. Wang tied him up, tried to strangle him, stabbed him several times, and then smothered him with a pillow.
The trial judge did not allow self-defence to go to the jury because Wang’s story did not satisfy the evidential burden.[21] No reasonable jury could have decided that Wang had used reasonable force in self-defence.
Li was in a drunken stupor. It was found that:
One could not reasonably have considered that those threats might be carried out by him, 'at any moment', in his then state, nor when his aim was to extort money from her sister in Hong Kong. There was no immediate danger to render causing his death a reasonable course of action.[22]
This meant that Wang's actions were unnecessary: there were other things she could have done to protect herself:
Her sister and her friend Susan were both in the house. She could have woken them and sought their help and advice. She could have left the house taking her sister with her in the car which was available. She could have gone to acquaintances in Christchurch or to the police....We are satisfied that no ordinary reasonable person...would...have believed it necessary to kill him.[23]
Wang herself may have seen the circumstances differently. She had been physically, sexually and emotionally abused throughout the marriage. She was an immigrant to New Zealand and spoke little English. The Court of Appeal admitted that she “was not conversant with social opportunities or avenues for help” and described this as a case of “a weakening of the accused's ability to reason leading to a situation where in her own perception she was in a desperate situation with an apparent absence of alternatives”.[24]
In Jenkins, although the subjective test was not applied to beliefs about alternatives to using force, the court was willing to consider the reasonableness of the appellant’s force as if there were no police officers within easy reach. This technique could not be used in Wang. Although Wang may well have believed that escape was not possible, this belief was ignored in the court’s reasoning about the reasonableness of her actions.
The Court of Appeal’s approach in Wang is consistent with Jenkins once it is recognised that it was the reasonableness of Jenkins’ beliefs that allowed them to be considered. The likely absence of police officers was part of the objectively-defined circumstances rather than part of the circumstances as the appellant believed them to be. Because Wang’s assessment of alternatives differed from that of a “reasonable” person - it was influenced by physical illness, depression and social isolation - it could not be seen as part of the objectively-defined circumstances.
Wang raises the question: what is the correct interpretation of section 48? Crowe was an example of a broad approach to “the circumstances” in which a belief about whether assistance is available or would be effective is a belief about the circumstances and therefore to be treated as if correct. Jenkins and Wang are examples of a narrower approach, in which the availability of assistance is an objective matter so that differences between the defender's opinions about sources of assistance and those of the court are ignored. This effectively imposes a reasonableness test for some of a defender's beliefs. The rest of this article will consider which interpretation is more consistent with the principles that underlie section 48 and with the intent of Parliament in enacting it in its current form.
Prior to 1980 different rules applied to those who defended themselves against provoked and unprovoked assaults. The law relating to defence against a provoked assault was much stricter, so that the availability of the defence could depend on who had started an incident. This led to difficulties in application of the law, which were exacerbated by uncertainty about the effect of mistakes. Some of the relevant sections of the Crimes Act 1961 appeared to make no provision for mistake at all, others seem to have required reasonable mistakes.
In 1979 the Criminal Law Reform Committee was asked to review the self-defence provisions. The Committee proposed the removal of the distinction between provoked and unprovoked assaults and the introduction of a wholly subjective standard (honest belief standard) for the defender's beliefs.[25] The reason for the first of these changes was clear: simplification. The reason for the adoption of the honest belief standard is less clear. The Committee itself gave no reasons for its recommendation and when the amendment to the Crimes Act was debated in Parliament the Minister of Justice did not seek to justify the change. There appears to have been concern that it might result in unmeritorious claims, since the Minister pointed out that claims to have held wholly unreasonable beliefs would quite probably not be credible[26] and Geoffrey Palmer, for the Opposition, expressed some concern about “cases involving mantraps or spring-guns”.[27] However, neither Government nor Opposition regarded this as a matter worth serious debate.
The explanation of the change to an honest belief test can be found, however, by looking at the Committee’s general approach to criminal law. The Criminal Law Reform Committee has been described as having “pursued a consistently subjectivist approach to criminal liability”.[28]
The basis of subjectivism is the idea that mens rea for a criminal offence should be either intent or recklessness; negligence is insufficient (unless a statutory definition of an offence refers specifically to negligence). If a subjectivist approach is taken to criminal liability, a person who has done a prima facie criminal act under the influence of an unreasonable mistake of fact will not be liable. She may have been negligent in making the mistake but that is insufficient to justify punishment for an offence that requires intention or recklessness. In order to achieve a result intentionally it is necessary to have that result in mind; the mistake shows that the actor had a different result in mind and did not do the unlawful act intentionally. Recklessness involves awareness of a risk of causing a result; again, the mistake cancels out the recklessness.
This approach to liability lies behind an argument made by Smith and Hogan in the third edition of Criminal Law, published in 1973:
An unreasonable mistake is negligence. It is therefore submitted that if D has killed, in the belief, arising from an unreasonable mistake of fact, that it was necessary to do so to prevent crime or in self-defence, he should be convicted of manslaughter, if his mistake was a grossly unreasonable one. Unless his mistake could be said to amount to gross negligence, he should have a complete defence.[29]
To deny self-defence to a person who had made an unreasonable mistake was contrary to (subjectivist) principles of criminal liability.
In 1975 an argument like this was accepted by the House of Lords in relation to rape. In DPP v Morgan, the defence was that the defendants believed that the complainant was consenting to intercourse. The jury convicted after being instructed that this was a defence only if the mistake was reasonable. The House of Lords decided that this was a misdirection. Rape could not be committed negligently, it involved having intercourse “recklessly and not caring whether the victim be a consenting party or not”.[30] Any belief that the complainant consented, however unreasonable, was inconsistent with an intent to have intercourse with someone who was not consenting or with recklessness about her consent.[31]
The decision in Morgan was controversial, and the New Zealand legislature amended the Crimes Act 1961 to ensure that liability extended to those who made unreasonable mistakes about consent.[32] However, the Criminal Law Reform Committee had already prepared a report on the decision in Morgan that endorsed the House of Lords’ reasoning:
They quoted with approval a passage from Glanville Williams to the effect that the test of intention is subjective, not objective...The Committee concluded that if criminal liability is, properly, based on subjective principles, then an unreasonable mistake must negate liability...And the Committee specifically rejected the suggestion of a lesser offence of rape by negligence, for the reason that it felt that negligence should not, generally, be the test of criminal liability.[33]
The House of Lords limited its reasoning in Morgan to rape but some academic commentators disagreed. Honest mistake would also negate the mens rea for offences of violence if it meant that the actor believed that she was acting in self-defence and the force used would have been reasonable had her interpretation of the circumstances been correct. She did not intend to act unlawfully because it is not unlawful to use reasonable force in self-defence.[34] In 1975 Ashworth wrote:
Since ... even an unreasonable mistake negatives the element of knowledge which is an essential component of criminal liability, a purely subjective test should likewise apply to a person's belief in the circumstances of necessity upon which a justificatory defence might be based”. [This argument applied both to a] person who (mistakenly) believes that someone is about to attack him, or that there is no safe avenue of withdrawal .[35]
Editions of Smith and Hogan and Glanville Williams appearing after the decision in Morgan took the same view.[36]
Direct evidence that arguments like these persuaded the Criminal Law Reform Committee to recommend an honest belief test is hard to find. There are references to a codification proposal from the British Criminal Law Revision Committee that omitted to include a reasonable belief component,[37] and to an article by Griew discussing those proposals. Griew expressed a preference for a wholly subjective test - but gave no reasons for this preference.[38] The published words of the Committee provide no further clues about its reasoning. Perhaps this is the most cogent evidence in favour of its acceptance of the approach described above. If the Committee had reached the same conclusion as the English academics, but for different reasons, it seems likely that it would have explained itself.
It is therefore submitted that the reason New Zealand adopted an honest belief standard for self-defence in 1980 was the view that the reasonable belief standard was contrary to principles of criminal responsibility.[39] The subjectivist approach that was rejected for the offence of sexual violation triumphed in the defence of self-defence.
The difficulty with section 48 is one of statutory interpretation. The New Zealand approach to such problems can be summarised as follows:
...courts are to apply that which they take to be the intended meaning of a statutory provision so long as it is a possible meaning of the language used...In deciding what is a possible meaning the courts should rely on their understanding of the conventions governing the ordinary use of language. To decide what was the intended meaning of a provision they should take account of what appears to be its purpose, as well as of any other indications of its meaning available to them.[40]
An analysis of the words of section 48 together with its supposed purpose suggests that the correct approach to the section is the one that has been labelled the “broad” approach.
The starting point in determining the meaning of section 48 is to look at the meaning of the words themselves. There is a potential difficulty with relying upon notions of legislative intent. When enacting section 48, the legislature almost certainly did not give thought to the precise meaning of “the circumstances”. Is the legislative intent limited by the meaning the legislators had in mind at the time of enactment? Payne argued that it should be and that “it would ... be a strange use of language to say that the user of a general word 'intends' it to apply to a particular that never occurred to his mind”.[41] MacCallum convincingly argued that intent can cover such cases:
I might react against the claim that I had intended x by making statements roughly in the form: ‘The thought of such a thing as x never occurred to me’. But the point of this remark is not merely that the thought of such a thing as x had not occurred to me; there is also a clear suggestion that if such a thought had occurred to me I would have excepted such things as x. Without this further suggestion, my remark would surely seem pointless.[42]
It is not known what examples were to the fore of the legislators' minds when enacting section 48, but there is no reason why the operation of the section should be limited to the types of case that were actually anticipated. If the further types of case are within the permissible meanings of the words used and they also come within the reasons for the rule, the legislative oversight does not matter.
The important words are “belief” and “circumstances”. The New Shorter Oxford English Dictionary defines a belief as “mental acceptance of a statement, fact, doctrine, thing, etc, as true or existing”. To believe something is to “accept the truth or reality” of it, to “hold as true the existence of” it or to “think or suppose (someone or something) to be..”.. A circumstance is “that which stands around or surrounds”, or “the material, logical or other environmental conditions of an act or event; the time, place, manner, cause, occasion, etc, of an act or event; the external conditions affecting or that might affect action”.[43]
When the phrase “the circumstances as she believed them to be” is read with the rest of section 48, these definitions provide an indication of the content of beliefs about circumstances. The subjective test modifies the objective test where a mistake about a “circumstance” has been made. It cannot do this unless the content of the belief is logically related to the reasonableness of the believer's defensive response. It must be something the truth or existence of which is relevant to an assessment of the reasonableness of the defender's actions: in effect it must be a belief about an external condition that affects or might affect action.
The type of relationship this requires is shown by looking at the effect of a mistake about the nature of a threat. If Carlos is attacked by Derek, Carlos' belief that Derek is armed is relevant to the reasonableness of Carlos' response. Assuming that Carlos is roughly the same size as Derek, and has some fighting skills, it is probably unreasonable for him to use a weapon to defend himself: it is unnecessary because he can use his hands and it is disproportionate because a weapon will cause much greater injury than the unarmed Derek could inflict with his hands. It is very different if Derek is armed: he can inflict much more harm, and it is less likely that bare hands will repel the assault. Carlos' belief about whether Derek is armed is a belief about an external condition that, if true, would impact upon the reasonableness of the defender's response and hence a belief about “the circumstances”.
This interpretation of the test does not provide grounds for limiting beliefs about the circumstances to beliefs about the mode of attack, as a further hypothetical example demonstrates. Angela is alone with Brendan in an isolated property. Brendan threatens to kill Angela in the morning and then goes to bed. Angela believes that the telephone has been cut off, and Brendan has told her that he has disabled the car to stop her from running away. He is lying but Angela believes him and concludes that she has no means of escape from the house. During the night, she shoots Brendan. If Angela's belief that she was effectively trapped was correct, it might be reasonable for her to use force while Brendan was sleeping. On the other hand, if she did not believe that she was trapped, it would almost certainly be unreasonable for her to use that force: she would be expected to use the car or telephone to get help. The options available to Angela are logically related to the reasonableness of her response to Brendan's threats, and therefore her beliefs about those options are beliefs about the circumstances for the purposes of section 48.[44]
The test described here is not concerned with the reasonableness of the belief in question. Where a belief relates to the nature of a threat, reasonableness is relevant only to credibility; this is true whatever the subject matter of the belief. Section 48 would appear to allow self-defence to be put to a jury even where the defendant's beliefs stemmed from an insane delusion.[45] If Angela believed that the car was out of order because it had been attacked by aliens, the logical relationship between her belief and her subsequent actions would be unchanged: it would still be a belief about “the circumstances”.
The dictionary meaning of relevant words therefore appears to support a broad reading of the phrase “the circumstances as she believed them to be”. The narrower interpretation of the phrase requires different mistakes of fact to be treated differently but there is nothing in the words used to justify the distinction between different kinds of mistakes which is the effective result of cases such as Jenkins and Wang. On this reasoning, it would seem that the approach in Crowe is the correct one.
However, it is obviously not impossible that the phrase could be interpreted in the narrow way. If the broad interpretation is inconsistent with the reasons for the use of the subjective test, it may be necessary to return to the narrower meaning. It was submitted above that the basis of the honest belief test is the view that a person who believes that she is acting in self-defence lacks the mens rea for a crime of personal violence. What she intended to do was not an offence because it is not unlawful to use reasonable force in self-defence, even if that force is used intentionally. Therefore she did not commit the offence intentionally and she should not be subject to punishment despite the consequences of what she did.
This argument seems to apply equally well to beliefs about all aspects of the circumstances of a self-defence claim. In the Angela and Brendan hypothetical example, Angela held a positive belief that she had access to neither car nor telephone. What the law really required in the circumstances was that she use a non-violent method of protecting herself; her mistake meant that she did not have “normal capacities ... for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities”.[46] She was unaware of the opportunity to use a non-violent method of protecting herself.
The argument is basically the same as that which applies when a mistake is made about the nature of a threat. The law demands that a person who is attacked by someone who is unarmed resists using a weapon if she is capable of protecting herself without one or if the attack will cause her no real harm. But she does not have a fair opportunity to comply with this demand if she believes, mistakenly, that her attacker is armed. If a defender reacts in a way that would be appropriate if she was correct about the facts, it is not appropriate to treat her as if she had not made that mistake.
The case of R v Wang was considered earlier in this article as an example of a court ignoring a defender’s beliefs about the possibility of escape. Given the facts as stated in the Court of Appeal’s decision, it is not possible to state whether the outcome would have been different if section 48 was interpreted broadly. It is unclear what Wang actually believed: this might have been a case in which the defendant failed to think about what options were available to her and simply did the first thing that came to her mind. Or she might wrongly have thought that she had considered all the options but omitted to consider the possibility of escape or asking for help. Alternatively, she may have considered the possibility of escaping or contacting the police or others for help and rejected these options. The outcome of her self-defence claim would not be the same in all these scenarios.
The disadvantage of this interpretation of section 48 is that there is a risk that it could dilute the objective test. In most of the examples discussed so far, the matters upon which the actors were mistaken allowed for the normal operation of the objective test. The result of the self-defence claim still depends on careful application of the reasonable force test. A defender must take the care that a reasonable person would take and this will sometimes involve considering something that the defender failed to consider. All that the subjective test demands is that, if the defender holds a belief about a circumstance, she must be treated as if the belief was correct, but this does not mean that she must be treated as if the only matters to be considered were those which she actually considered. The failure to think about something is not holding a belief about that thing. Because these further factors will be taken into account when the reasonableness of actions is judged, the objective test remains meaningful.
A serious problem would arise if a defender wrongly believes that she has considered all the alternatives to force: can this be described as a belief about the circumstances? It seems to satisfy the test described earlier, but the effect of fixing the circumstances by the belief is to limit severely the operation of the objective test. The defendant would have to be treated as if she had considered all the alternatives, even if she had omitted some, and her response to the danger would be certain to be judged reasonable. A belief that “this degree of force is reasonable” is easily excluded from beliefs about the circumstances, because including it would not work within the structure of section 48; the belief that all options have been considered is less easily excluded.
One answer would be to try to distinguish between beliefs about verifiable material facts - for example, that a telephone was broken - and conclusions based upon those beliefs, and to deny that the latter were really “beliefs” in the strict sense. This would be extremely complicated, though, because even the initial belief about the telephone would turn out to be a conclusion based on other facts. The solution to the problem probably lies in the legislature's intention. The inclusion of an objective test in section 48 signalled that it was not for a defender to decide for herself what it would be lawful to do. Any belief that effectively takes that decision away from the judge or jury is outside the intended scope of the words of the section. This might be a qualification based on policy or it might be justified on the ground that such a belief is not a belief about an external condition that affects or might affect action.
In Wang, the trial judge referred to “a return to the law of the jungle” and the Appeal Court quoted (indirectly) from the decision in Jahnke v State, where the judge complained about a “ leap into the abyss of anarchy”.[47] Finn sees this as a concern about the potential for dilution of the objective component of the defence and suggests that there is a covert policy decision being made in Wang to exclude certain types of mistaken belief from the ambit of section 48.[48] It has been demonstrated in this article that this concern about the objective element of section 48 is misplaced. The objective test is capable of operating as it was intended to operate.
This article has argued that the phrase “the circumstances as she believes them to be” requires courts to take any material mistakes of fact into account when deciding whether a person's actions were reasonable. These may include mistakes about whether a particular alternative to using force was available. The only limit to what can be a belief about circumstances is that the belief has to be about something that is logically connected to the objective reasonableness of force. If the effect of treating the mistaken belief as correct is to deny any real operation to the objective reasonableness, that belief is not within the scope of the circumstances as the defender believes them to be.
In most cases, it would make little difference if section 48 was interpreted in this way rather than in the way it is at present. Many uses of excessive force are the result of panic rather than mistake, and the proposed reinterpretation would make no difference to the outcome of these cases. In most cases where a mistake really has been made, the defender is already treated as if the circumstances were as she believed them to be, either because of the subject matter of her mistake or because it was reasonable. The impact of the proposed reinterpretation of section 48 arises in cases like Wang “where ... the defendant perceives his or her situation in a way which is different from the way an ordinary person would perceive it..”.[49] At present, in such cases there is a risk that the court will decide that there is no credible narrative of self-defence, and the defence will not even be put to the jury. The broader interpretation of section 48 makes it more likely that juries will have the opportunity to consider the actions of the defendant in light of her own, fully explained, view of the circumstances. This could be particularly valuable in cases involving abused women, where their previous experiences of violence and of the assistance available to them might lead to a view of the circumstances which differs from that which a person without those experiences would form. It is true that such experiences may be revealed in the course of the evidence in any case, but the proposed interpretation of section 48 makes it much clearer why and how they are relevant to the self-defence claim.
The cases that really concern the judges seem to be those where the defendant's view of the circumstances is wholly unreasonable. If a defendant's assertion is that the police would not assist her because she had heard a rumour they did not respond to domestic incidents or that she did not go to a neighbour because they had had an argument earlier and she did not think the neighbour would help her, there would indeed be an extension of self-defence to some doubtful cases. Should someone who resorts to force on the basis of such flimsy fact-checking be acquitted? This problem is a real one but it is not unique to mistakes about opportunities for escape: exactly the same problem arises with mistakes about other aspects of the circumstances. As section 48 is currently applied, there is no reason why self-defence should be denied to a person whose ground for believing another person is a threat to her is that person's ethnicity. This application of the defence is at least as morally doubtful as the application in the cases referred to above. The reason why these cases are unmeritorious is that the mistakes demonstrate a blameworthy lack of respect for other people. The Court of Appeal is right to stress “society's concern for the sanctity of human life”.[50] but the solution lies in careful consideration of the honest belief test itself. There is no legitimate ground for distinguishing between blameworthy and blameless mistakes within the words of section 48. Concern about the scope of self-defence would be better directed towards a re-examination of this aspect of section 48.
[*] BA (Hons)(Stirling) LLB (Auckland), Lecturer in Law, University of Waikato.
[1] See eg Uniacke, S Permissible Killing: The Self-Defence Justification of Homicide (1994) chapter 2, and Schopp, “Self-Defence” in Coleman, J and Buchanan, A (eds) In Harm’s Way (1994).
[2] R v Robinson [1987] NZCA 240; (1987) 2 CRNZ 632, 635 (CA).
[3] R v Tavete (1987) 2 CRNZ 579, 581 (CA).
[4] R v McKay [1997] 3 NZLR 199, 200 (HC).
[5] R v Dadson [1850] EngR 44; (1850) 3 Car & Kir 148, 4 Cox CC 358.
[6] Prior to 1980, this was clear from the statutory definition of self-defence. The current provision says nothing about intent but there is no reason to suppose that a new restriction was being imposed. Such a restriction would be inconsistent with common law: the Privy Council in Palmer stated that if a person uses deadly force in defence and his or her actions were within the scope of the legal defence, “he is not guilty of any crime even if the killing was intentional” (Palmer v The Queen [1970] UKPC 2; [1971] AC 814, 823). Case-law applying s 48 seems consistent with this. In R v Ranger [1988] NZCA 353; (1988) 4 CRNZ 6 (CA), for instance, the Court ordered a retrial because the jury was not directed on self-defence. It was clear that the appellant had intended either to kill or to cause grievous bodily harm to her partner - he was stabbed in the shoulder - but there was no suggestion that this intent was inconsistent with self-defence. (This example is taken from Simester, A and Brookbanks, W Principles of Criminal Law (1998) 413-414).
[7] The evidence for this assertion is that in many cases involving mistakes about defence it is clear from the facts that the defender was intoxicated, but the courts do not discount the mistake. See eg Stanbury v Police [1988] NZHC 2193; (1988) 3 CRNZ 253.
[8] Supra note 4.
[9] At 200.
[10] At 210.
[11] R v Terewi [1985] NZCA 162; (1985) 1 CRNZ 623, 625.
[12] At 625; also R v Wang [1989] 3 NZLR 529, 539.
[13] What matters here is the amount of force that the defender intends to use, so that, if a defender strikes an aggressor intending to cause minor injury and in fact causes a more serious injury, the question will be whether that minor injury was disproportionate.
[14] Palmer, supra note 6.
[15] Unreported, High Court Christchurch, AP 65/88, 10 June 1988, Williamson J.
[16] At 5. The cause of Crowe's “impairment” was, presumably, the glue he had sniffed.
[17] At 3.
[18] Jenkins v Police [1986] NZHC 171; (1986) 2 CRNZ 196.
[19] Supra note 12.
[20] [1986] NZHC 171; (1986) 2 CRNZ 196, 199.
[21] There must be a “credible narrative which might lead the jury to entertain the reasonable possibility of self-defence” (Tavete, supra note 3, at 581).
[22] [1989] 3 NZLR 529, 537.
[23] At 534.
[24] At 540.
[25] Criminal Law Reform Committee, Report on Self-Defence (1979).
[26] NZPD 1 August 1980, 2284.
[27] Ibid, 2285.
[28] Hannan, “Pragmatism and Principle in the Construction of Change: The Criminal Law Reform Committee” (1988) 13 NZULR 206, 209.
[29] Smith, JC and Hogan, B, Criminal Law (3rd ed, 1973), 263.
[30] Morgan v DPP [1975] UKHL 3; [1975] 2 All ER 347, 357.
[31] The appeal failed, however, because there was insufficient evidence that the appellants had honestly believed that the complainant consented.
[32] Crimes Act 1961 s128(2) and (3) sets out the mens rea for the offence of sexual violation.
[33] Hannan, supra note 28, 209, referring to Criminal Law Reform Committee, The Decision in DPP v Morgan: Aspects of the Law of Rape (1980).
[34] This assumed a particular explanation of how self-defence operates as a defence. Rather than being a supervening defence, coming into operation notwithstanding that both actus reus and mens rea of an offence had been proved, it qualified the mens rea for offences of personal violence. The intent must be to use unlawful force not simply to use force.
[35] Ashworth, “Self-Defence and the Right to Life” [1975] Camb LJ 282, 304-305. Emphasis added.
[36] Smith, JC and Hogan, B, Criminal Law (4th ed, 1978) 329; Williams, G Textbook of Criminal Law (1978) 452. The post-Morgan argument was basically no different from the one described in the earlier edition of Smith and Hogan, but its structure made it more attractive to courts since it could be accepted on an offence/defence by offence/defence basis without any need for philosophical discussion about the nature of mens rea.
[37] Criminal Law Reform Committee, supra note 25, at 7, quoting para 166 of the English report.
[38] Griew, “Non-Fatal Offences and Self-Defence” [1977] Crim LR 91, 99.
[39] The English courts themselves later adopted an honest belief test for self-defence, relying on the defender’s lack of mens rea. See R v Williams [1987] 3 All ER 411.
[40] Evans, PJ Statutory Interpretation: Problems of Communication (1988) 2. Although the Acts Interpretation Act 1924 governs the general approach to statutory interpretation in New Zealand, it does not change common law doctrine.
[41] Payne, “The Intention of the Legislature in the Interpretation of Statutes” (1956) 9 Current Legal Problems 96, quoted by Evans, supra note 40, 187.
[42] MacCallum Jun, ” Legislative Intent” in Summers, R S Essays in Legal Philosophy (1968), quoted by Evans, supra note 40, 188.
[43] New Shorter Oxford English Dictionary (1993).
[44] This is not to say that Angela was reasonable to kill Brendan while he was asleep. Even once Angela’s belief that the car was disabled was taken into account, her use of force might be unreasonable: there may have been some other alternative that she did not consider. It might be unreasonable by definition to kill someone who is asleep, whatever options for escape are available. The crucial point is that her belief is a relevant one.
[45] R v Green [1993] NZCA 387; (1993) 9 CRNZ 523 (CA).
[46] Hart, “Negligence, Mens Rea and Criminal Responsibility” in Hart, HLA Punishment and Responsibility (1968) 152.
[47] Jahnke v State 682 P 2d 991, 997 (Wyo 1984) quoted in R v Wang [1989] 3 NZLR 529, 538.
[48] Finn, Case note on R v Wang (1990) 14 Crim LJ 200, 203.
[49] Ibid, 202.
[50] R v Wang [1989] 3 NZLR 529, 539.
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