3. Self-defence

31 SECTION 48 of the Crimes Act 1961 provides:

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.

This defence recognises 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 law does not require people to wait until they have been attacked before taking action to protect themselves. But the law also acknowledges the attacker’s right to life and bodily integrity and requires the force used in self-defence to be no more than is necessary to prevent the violence or threatened violence.

32 Self-defence often becomes an issue in trials of battered defendants who kill their partners after a long history of physical abuse.

33 To call self-defence a “defence” is in a way misleading, because it is the prosecution which must prove beyond a reasonable doubt that the defendant was not acting in self-defence.[44] However, in order for self-defence to become an issue for the jury to decide, the defendant must be able to point to material in the evidence that is capable of raising a reasonable possibility that he or she acted in self-defence. The judge must then determine, on the view of the evidence most favourable to the defendant, whether there is sufficient evidence to justify allowing the jury to consider the question.[45]

34 The New Zealand test for self-defence contains both a subjective and an objective element. The fact-finder must determine what the defendant believed the circumstances to be when he or she resorted to the use of force. This is a subjective inquiry. The defendant’s belief need not be reasonable, although lack of reasonableness may influence the fact-finder in deciding whether the defendant genuinely held that belief. The question whether the defendant was acting “in the defence of himself or another” is also subjective: the answer depends on whether this was the defendant’s intention in the circumstances as the defendant saw them.[46]

35 The fact-finder must then determine whether the force that the defendant used was reasonable in those circumstances. This is an objective test, but it is applied to the defendant’s subjective view of the circumstances. Concepts developed at common law have been used to determine, as evidentiary matters, whether the response was objectively reasonable or not. These concepts are the imminence and seriousness of the attack or anticipated attack, proportionality of the defensive action to the perceived danger, and the lack of alternatives.[47]

SELF-DEFENCE AND BATTERED DEFENDANTS

36 Section 48 is, on its face, gender neutral. However, commentators have said that the way in which it has been interpreted may limit its availability for women who kill in response to domestic violence.[48] This is because the concepts referred to in paragraph 35 were developed in the context of male conflicts: typically single confrontational encounters between two people of roughly equal strength.[49] Battered defendants, on the other hand, face repeated violence, generally from a person of greater physical strength. Conceptual tools developed to evaluate reasonableness in a one-off confrontation may not be adequate to evaluate reasonableness in a situation of on-going domestic violence.

Imminence of danger and lack of alternatives

37 In order to determine whether the force the defendant used was reasonable, juries are often told to consider two inter-related factors: whether the danger the defendant sought to avoid was imminent and whether the defendant had options other than the use of force. Imminence is a question of fact and degree and does not necessarily mean immediate. However, danger would not be considered imminent if the defendant has a reasonable means of avoiding it. The question is, was the defendant facing danger that was so pressing that he or she had no reasonable option to repel or avoid it other than to use the force that he or she used.

38 The relative physical weakness of many battered defendants vis-à-vis their abusers will often dictate the manner and timing of the battered defendants’ responses. Research indicates that significant numbers of battered women who kill their spouses do so when they are not facing an immediate attack or threat of immediate attack.[50] By the time an immediate attack is threatened, any attempt at self-protection may be too late. Thus, victims of domestic violence may resort to surprise attacks,[51] or they may attack during a lull in the violence against them.[52] The partner may even be asleep.[53] This raises the issue of whether the danger posed by the partner was sufficiently imminent for the use of lethal force to be considered necessary and therefore reasonable.

39 To some extent, the courts have acknowledged the experiences of battered defendants when dealing with the concept of imminence. Expert evidence has been admitted to the effect that victims of domestic violence become attuned to their partners’ behaviour and may pick up signs of an impending attack that would not be obvious to someone outside the relationship.[54] Or that the violence may affect the mind of a defendant so that he or she apprehends danger even when it is not objectively apparent.[55]

40 Nevertheless, imminence is not always an adequate tool to assess the reasonableness of a battered defendant’s use of force. The very word “imminence” encourages a short-term view of the danger that only looks at the situation immediately preceding the defendant’s use of force, without reference to the possibility that the danger may continue even if the defendant escapes from the immediate threat. This tendency is compounded by the way imminence inter-relates with the other important factor in assessing reasonableness: the lack of alternatives. Generally, courts have not considered danger to be sufficiently imminent to justify the use of force if the defendant had a reasonable non-violent option for avoiding the immediate danger.

41 This is illustrated in R v Wang.[56] In that case, the defendant was an immigrant from China who was charged with the murder of her abusive husband. On the night of the homicide the husband 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. She claimed to have acted in self-defence. The trial judge refused to allow self-defence to go to the jury. He said that, as the defendant was in no immediate danger and had alternative courses of action open to her, such as going to the police or seeking the help of her sister and friend who were with her in the house, there was no possibility the jury could have considered her use of lethal force to have been reasonable.[57]

42 The Court of Appeal upheld the trial judge. The Court accepted that it might be reasonable to make a pre-emptive strike in some circumstances.[58] However, where a person was subjected to a threat that could not be carried out immediately, a pre-emptive strike would not be reasonable if there were alternative courses of action available.[59] This raises questions about the sort of options that victims of domestic violence should be expected to take.

43 Research suggests that peaceful and effective avenues for self-protection are not always available to victims of domestic violence.[60] Some fear, with good cause, that they will be killed or seriously beaten if they go to the police for protection[61] or seek to leave the abusive relationship. New Zealand research shows that the Police and the courts did not or could not always offer effective protection against abusive spouses.[62] There is also considerable evidence of the dangers that leaving a violent relationship may pose for battered women.[63] Thus, some victims of domestic violence may have a realistic fear that they cannot escape from the inevitable danger posed by their spouse even if they are able to run away from the violent incident immediately confronting them. For example, a defendant may not consider leaving home to be a viable option, even though it may afford a short period of immediate relief, if past experience shows that the abuser will be able to find the defendant no matter where he or she runs to. For such a defendant, running away would only delay the inevitable.

44 As Schopp noted, there is a difference in the danger being immediate, and action which must be taken immediately in order to ward off a danger that is not itself immediate.[64] So long as the action is necessary, in that no non-violent alternative will achieve that end, there should be no additional requirement of imminence. Imminence of harm can be a factor to be considered in making judgments of necessity, but it should not be an independent requirement in addition to necessity. In New Zealand, imminence is an evidential presumption and not a rule of law. It is useful because in the absence of imminent danger, there is usually no necessity for defensive force, as the danger can be avoided in other ways. However, as Schopp points out, necessity can exist without imminence if the danger is unavoidable. In some situations, inevitability may be a better tool for assessing the need for defensive action.

45 The Court of Appeal has noted that in a hostage situation, the use of pre-emptive force against a threat that was not going to be carried out immediately might be reasonable, as the hostage is not free to seek protection in other ways.[65] This raises questions about the reasonableness of the alternatives open to victims of domestic violence. Is it reasonable to require them to move to a new town and take on a new identity if this is the only way of avoiding the danger? Or to leave the country?[66] We do not have answers to these questions but we see them as examples of the issues that may arise in assessing the reasonableness of defensive action against domestic violence.

46 Stubbs and Tolmie suggest that evidence on the following topics would be relevant and helpful in assessing a battered defendant’s claim that his or her use of force was necessary and therefore reasonable:[67]

• what was the nature and extent of the violence that the defendant suffered in the relationship?

• how many times had the defendant called the police and what was the result?

• had the defendant tried to enlist the protection of the criminal justice system or other agencies and what was the result?

• how many times had the defendant tried to leave?

• if the defendant returned, what were the factors that influenced that decision?

• did the defendant have a safe and affordable place to go?

• how had the abuser responded to other efforts at self-protection in the past?

• had the abuser intimated what he or she might do to the defendant in the future?

• was there anything about the defendant’s cultural circumstances that made it particularly difficult to detach from the abuser, negotiate the relationship or seek outside help?

Proportionality

47 The force used in self-defence is unlikely to be reasonable if it is out of proportion to the danger threatened. To take an extreme example, it would not be reasonable to shoot a big bully to death in order to prevent him from pulling one’s hair.

48 Battered defendants who claim to have acted in self-defence are generally women who have retaliated against male abusers. Women tend to have less physical strength than their partners and may not be socialised to fight in the way that some men are. Thus, they may need to defend themselves in a seemingly disproportionate way. For example, they may use a lethal weapon in response to a bare-handed attack. The courts have taken a realistic approach: in R v Oakes, the Court of Appeal said that a woman’s “physical limitations” should be taken into account when assessing the reasonableness of her response.[68]

49 Other aspects of proportionality, however, raise unresolved issues for battered (and other) defendants. The first issue is whether deadly force is necessarily disproportionate to anything less than the threat of death or serious bodily harm. For example, is it reasonable to use deadly force if that is the only way to escape from imprisonment or to prevent a sexual assault that does not amount to serious bodily harm? The second issue concerns repetitive violence. Can it ever be reasonable to kill if there is no other way of escaping from repeated assaults that do not amount to serious bodily harm?

50 Again, we do not think there are answers that will fit all cases. What is reasonable will depend on the facts of the particular case. But these are further questions that may arise in assessing the reasonableness of the force used in self-defence against domestic violence.

Intent to act in self-defence

51 Even when battered defendants genuinely intend to act defensively, their behaviour can be misinterpreted. Disparities in physical strength may mean that any defensive action would require pre-planning to be successful. Sometimes this will involve the use of deadly weapons.[69] The need to avoid a direct confrontation that they are likely to lose may lead them to choose a method such as poisoning. They may have expressed relief rather than remorse after the killing. The impression given is that the defendant’s motive was cold-blooded revenge rather than defensive.

52 Of course, the source of such behaviour may in fact be a motive other than defence. But, where appropriate, alternative explanations compatible with self-defence should be made available to the jury.

ISSUES FOR REFORM

53 Our discussion of self-defence has identified two issues for possible reform, on which we seek the readers’ views.

Leaving self-defence to the jury

54 It will be recalled that the Court of Appeal in Wang upheld the trial judge in his refusal to allow the jury to consider self-defence for the reason that no jury could properly regard Wang’s use of lethal force to be reasonable. It can be argued that, contrary to the Court of Appeal’s ruling in Wang, whenever the evidence points to a reasonable possibility that the defendant intended to act defensively, the question of whether the force used was reasonable should always be left to the jury. Ideas of what is reasonable change over time and, with regard to victims of domestic violence, have changed considerably over recent years.[70] To withdraw the issue from the jury is to deprive the legal system of what has traditionally been regarded as the most appropriate arbiter of community values. On the other hand, it may be said that a judicial filter will help to guard against wholly unreasonable verdicts.

Question 1: Whenever the evidence establishes a reasonable possibility that a defendant intended to act defensively, should questions about the reasonableness of the force used by the defendant always be left to the jury?

Imminence or inevitability

55 We refer to the discussion in paragraphs 37 to 46.

Question 2: Should it be possible for a defendant to be acquitted on the basis that he or she acted in self-defence where the danger sought to be avoided was inevitable but not imminent?

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