Contents

Chapter 5
Self-defence in New Zealand

Operation of self-defence in New Zealand

5.11Section 48 of the Crimes Act 1961 provides:

Everyone is justified in using, in the defence of himself or herself or another such force as, in the circumstances as he or she believes them to be, it is reasonable to use.

5.12It is for the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence, and a defendant may be discharged if no jury could properly exclude self-defence. However, before self-defence goes to the jury, there must be evidence of a credible or plausible narrative that might lead the jury to entertain the reasonable possibility of self-defence.379 It is for the judge to determine, on the view of the evidence most favourable to the defendant, whether there is sufficient evidence to leave the defence to the jury, and self-defence must be left unless the judge is satisfied that it would be impossible for the jury to entertain a reasonable doubt.380
5.13While section 48 states the law of self-defence in “deceptively simple terms”,381 it is well established that section 48 involves three inquiries:382
5.14The first two inquiries are subjective. The situation is assessed by looking at it as the defendant did. The third inquiry is objective, although it is applied to the defendant’s subjective view of the circumstances. The Criminal Law Reform Committee, when recommending the current wording of section 48, explained as follows:383

To restate our proposal in legal terms, we think that a subjective rather than an objective test should be applied in determining the accused’s belief as to the facts, but that an objective test should be used in assessing the accused’s response to the facts as he believes them to be.

The subjective inquiries – the “circumstances as he or she believes them to be”

5.15As two commentators note, “a cardinal principle of criminal responsibility is that moral obligation is dependent not merely upon the actual facts but also upon the actor’s perception of them”.384 Accordingly, where self-defence is raised, a defendant’s conduct is to be assessed according to the circumstances as he or she believed them to be at the time force was used.
5.16This means that, where the defendant is acting under an honest but mistaken or objectively unreasonable belief, the force used must be assessed against that belief as if it were accurate. As the Criminal Law Reform Committee explained, when recommending the current wording of section 48:385

For example, if the jury determines that the accused believed he was being attacked – when in fact he was not – the jury should nonetheless find that the use of force in repelling the attack was justified unless it is satisfied that the force used was more than was necessary for overcoming the danger the accused thought he faced.

5.17This was recently confirmed by the Court of Appeal in Fairburn v R, which stated:386

A further point of potential significance in this instance is: what if an accused’s beliefs are unreasonable? The accused may have had a misapprehension, and one which might objectively be said to be unreasonable. The present principle in New Zealand is that an unreasonable belief that force was necessary may still support a defence provided that belief is honestly held. As this Court said in R v Savage: “When the knife was used, the accused must have seen himself as under a real threat of danger, and not merely think there may be some future danger to him.” Or, to put it another way, there must be an honest belief of a threat of the requisite danger. Thus, to take an extreme example, even an insane delusion might require the defence to be put to the jury. As Wright has correctly observed, “[t]he cases that really concern the judges seem to be those where the defendant’s view of the circumstances is wholly unreasonable”. But on the present state of the law, so long as the belief is honestly held it does not matter that it was unreasonable.

5.18However, while even an “insane delusion” might need to be put to the jury (as noted in Fairburn), in practice, the more unreasonable the belief, the more the defendant’s credibility may be doubted, and a jury may simply not believe that an unreasonable belief was genuinely held.

The objective inquiry – assessing reasonable forceTop

5.19The third inquiry in section 48 is an objective one, but it also has a subjective element. The fact-finder must assess whether the defendant’s actions were reasonable in the circumstances as the defendant believed them to be. This requires the fact-finder to “look at the situation … through the eyes of the accused to determine whether the force may have been reasonable having regard to that person’s perception of the circumstances”.387
5.20The Court of Appeal recently endorsed the judicial direction given by the trial Judge – Woolford J – in R v Afamasaga388 on the objective inquiry:389

Whether the force used was reasonable, will require consideration of the perceived imminence and seriousness of the attack or anticipated attack, whether the defensive reaction was reasonably proportionate to the perceived danger and whether there were alternative courses of action of which [the defendant] was aware. In the context of lethal or deadly force, reasonableness requires that the force be absolutely necessary.

5.21Accordingly, whether the force used by the defendant was a reasonable response to the facts as he or she believed them to be depends on:390

5.22How these three concepts operate where a victim of family violence kills their abuser in response to long-term abuse lies at the heart of the problems with the current law of self-defence. The history and problems with these three concepts are discussed in detail in the following chapter.

379R v Wang, above n 372, at 534; R v Tavete [1988] 1 NZLR 428 (CA) at 430; R v Kerr, above n 377, at 340; and France, above n 370, at [CA48.17].
380R v Wharerau [2014] NZHC 1857 at [8]; R v Wang, above n 372, at 534; R v Tavete, above n 379, at 431; and R v Kerr, above n 377, at 340.
381Afamasaga v R [2015] NZCA 615 at [46].
382R v Li [2000] CA140/100, CA141/100, 28 June 2000 at 6; Fairburn v R [2010] NZCA 44 at [34]; R v Wharerau, above n 380, at [4]; and R v Ford HC Auckland CRI-2010-044-000132, 22 July 2011 at [19].
383Criminal Law Reform Committee, above n 374, at [23]. See also Simpson v R [2010] NZCA 140 at [68], where the Court of Appeal said that, if a defendant's subjective perception is clouded by alcohol, this is a matter that is able to be taken into account under the subjective part of the s 48 inquiry.
384Simester and Brookbanks, above n 370, at 504.
385Criminal Law Reform Committee, above n 374, at [23]. See also Simpson v R, above n 383, at [68].
386Fairburn v R, above n 382, at [39] (footnotes omitted).
387R v Zhou HC Auckland T 7/93, 8 October 1993 at 7.
388R v Afamasaga [2014] NZHC 2142.
389Afamasaga v R, above n 381, at [43].
390France, above n 370, at [CA48.08]; and Afamasaga v R, above n 381, at [43]–[47].