Chapter 5
Self-defence in New Zealand

History of self-defence in New Zealand

5.6Self-defence has a long history in the common law. The Royal Commission first appointed to consider codification of the criminal law in England said in 1879:374

We take one great principle of the common law to be, that though it sanctions the defence of a man’s person, liberty and property against illegal violence, and permits the use of force to prevent crimes, and to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent.

5.7Self-defence was first codified in New Zealand in the Criminal Code Act 1893, which enacted the provisions drafted by the English Royal Commission. Self-defence was divided into three provisions applying to self-defence against provoked assaults, unprovoked assaults and defence of a person under protection. These provisions were re-enacted in the Crimes Act 1908 and again, largely unmodified, in the Crimes Act 1961.

5.8In 1979, 100 years after the self-defence provisions were first drafted by the Royal Commission, a review of the law of self-defence was carried out in New Zealand by the Criminal Law Reform Committee with a view to rationalising and simplifying the defence.375 Problems with the existing provisions included uncertainty as to whether they involved an objective or subjective test and difficulties in determining who started the particular incident (as different tests applied for provoked and unprovoked self-defence).376 The Committee reported to the Government in November 1979 and recommended replacing the existing provisions with one simple provision that applied in all cases. The recommended provision was enacted without alteration, becoming section 48 of the Crimes Act 1961.
5.9The Criminal Law Reform Committee favoured a simple comprehensive self-defence provision for the following reasons:377

Briefly, such a provision will require no abstruse legal thought and no set words or formula to explain it; and only common sense is needed for its understanding. The jury will decide the question of reasonableness in the light of the Judge’s summing up of the evidence. In summing up, the Judge will no longer be faced with varying statutory tests and distinctions that are extremely difficult, if not impossible, to explain simply to a jury.

5.10The Committee considered and rejected the option of providing a list of evidentiary guidelines for the court, stating:378

The Judge will in any case sum up to the jury on the evidence relating to such matters as the degree and mode of force used or threatened by the original aggressor or used in his own defence by the accused, the danger apprehended by the accused, and his opportunity (if any) to avoid the original assault or prevent it by other means. But to list such things in the legislation as matters to which the Court must have regard is in our view unwise and unhelpful in relation to self-defence, where the question is one of fact to be decided in the light of an infinite variety of circumstances in different cases. It might well introduce into the law complexities of interpretation, resulting in a further body of case law and the risk of elevating evidentiary principles into rules of law.

374Criminal Code Bill Commission Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners (C2345, Eyre & Spottiswoode for HMSO, London, 1879) at 11, referred to in Criminal Law Reform Committee Report on Self Defence (Report 15, November 1979) at [5]. The Royal Commission included Sir James Fitzjames Stephen, who first drafted a bill to state the law relating to murder, which became known as the “Stephen Code”. See Jeremy Finn “Codification of the Criminal Law: the Australasian parliamentary experience” (paper presented to Comparative Histories of Crime Conference, Christchurch, September 2003).
375Criminal Law Reform Committee, above n 374.
376At [10]–[12].
377At [20]. The Committee stated these reasons were those expressed by Lord Morris, in stating the common law principles of self-defence in Palmer v R [1971] All ER 1077 (PC) at 1088, and referred to in New Zealand by Richmond J in R v Kerr [1976] 1 NZLR 335 (CA) at 344.
378At [21].