Self-defence and family violence – is there a problem?
Imminence of the threat and lack of alternatives
6.16In judging the reasonableness of the force used by a defendant, courts have traditionally required there to be an immediacy of life-threatening violence to justify the killing of another in self-defence. This is known as the requirement for “imminence”. Closely related to the concept of imminence is whether the defendant had an alternative to the use of force, such as leaving or seeking help from Police.
Problems with imminence and lack of alternatives in the context of family violence
6.17Imminence and lack of alternatives developed in the context of the stereotypical danger envisaged by self-defence, which emanates from an immediate, violent one-off confrontation with a stranger or acquaintance. Many argue that these concepts are difficult to reconcile with the contemporary understandings of family violence. As we explained in Chapter 2, intimate partner violence is best understood as a cumulative pattern of harmful behaviour that is bigger than the incidents of physical violence on any one occasion. In some cases, coercive and controlling tactics by a predominant aggressor can mean a primary victim faces a constant and ongoing threat. Imminence, however, focuses on danger that is close at hand. As the Law Commission observed in 2001, this limits the inquiry to the discrete incident of violence or threat immediately preceding the defendant’s use of force. As one commentator explains:
The model of self-defence which focuses on an isolated ensuing or imminent assault envisages a killing in response to an extraordinary eruption in normal existence. It is the interruption of normal existence which allows for the deviation from a simple application of the laws against killing. Such a model may be appropriate in the context of an isolated contest between strangers. However, women who kill in retaliation to systemic abuse are killing in response to an aspect of their ordinary existence and the law at its most primary level does not contemplate the possibility of the need to defend oneself against normality. The danger faced by women in violent intimate relationships is embodied not in an isolated attack, nor even in a series of attacks, but in an on-going life of being abused and the fear which accompanies that life. The nature of these two kinds of “assaults” are of a fundamentally different nature.
6.18Because victims of family violence are not facing the stereotypical scenario of a one-off confrontation, the way in which they respond is different. They may respond where an immediate assault appears relatively minor, or they may respond at a time when the violence has ceased. They may arm themselves in anticipation of an attack, or they may act to protect themselves by a pre-emptive strike.
6.19Focusing on the immediate event means that juries may be less likely to hear evidence on the relationship history. Even if the jury does hear such evidence, it may only be for the limited purpose of understanding the circumstances of the immediate event in determining whether the defendant honestly apprehended death in light of the latest incident. One commentator notes several problems with introducing evidence for this purpose. First, evidence of past abuse tends to be elicited as a “list” of events, with little connection made between it and the killing, and without eliciting the experience and effects of living a life of being abused. Second, the weight of evidence of past abuse diminishes over time, and abuse that occurred several years before will be of less importance, whereas for an abused woman, its significance may increase if it indicates the fear with which she was living. Third, the introduction of evidence of past abuse may in fact work to undermine the reasonableness of the defendant’s actions, as if she had survived all past abuse the danger may be seen to be less serious, or if she had “warning” of the danger then she could have left. Such evidence, it is argued, is not sufficient to enable a jury to gain a proper understanding of the circumstances of the killing.
6.20A further problem with the concept of imminence is it assumes that, where a threat cannot be carried out immediately, there will be options other than the use of force to avoid the threatened harm, such as fleeing or calling the Police. However, such options may simply delay the threatened harm. As the Law Commission said in 2001:
Threats of future violence are typically used to keep a battered woman from leaving a relationship … Going to the police, for example, is a reasonable alternative to the use of force if thereby the defendant obtains effective protection, but not if it will ensure the defendant’s safety only for as long as she is in the presence of police officers.
6.21The Supreme Court also recently observed, when discussing the defence of compulsion, that the criteria of immediacy will be “highly indicative” of coercive circumstances leaving no practical alternative, but that it may be under-inclusive, because “threats which do not meet the immediacy … criteria may none the less be very coercive in the sense of leaving no reasonable alternative”.
6.22For these reasons, it is widely accepted that “the traditional understanding of what amounts to imminent peril is unsuited to self-defence in the context of [family] violence”. It can impede victims of family violence from relying on self-defence even where they genuinely believe there is no option to escape death or serious injury other than to kill their abusers.
6.23We consider below how the courts currently apply these concepts in New Zealand.
The decision in WangTop
6.24The leading case on imminence and lack of alternatives in the context of a victim of family violence who kills their abuser is R v Wang. Xiao Jing Wang was charged with the murder of her husband Jing Wah Li after stabbing him while he slept. Ms Wang was an immigrant from China. She was married to Mr Li for approximately four years before killing him. There was evidence that earlier in the evening of the fatal stabbing the deceased had threatened to kill Ms Wang and her sister if her family in China did not send him money. The trial Judge also noted that, if Ms Wang’s evidence was believed, there was “ample material” about past threats by the deceased. At trial a psychiatrist gave evidence that Ms Wang was suffering from a major depressive illness and, in her mental state, she would have believed that the threats of her husband would be carried through, and “the only course she could think of was to kill her husband”.
6.25The trial Judge withheld the issue of self-defence from the jury. This was on the basis that “a reasonable person in the accused’s position had a number of alternative courses open to her” and “the only view of the evidence open is that the accused was in no immediate danger”. On the question of imminence, the Judge said:
Here there is no suggestion that the victim had a weapon, nor had made any move to suggest the intended use of any object as such. The contention on behalf of the defence has to go to the length of asserting that a jury could reasonably find that an accused under no immediate threat or danger, however elastic an interpretation is given to that concept, who had alternative courses open none of which she had tried or seemingly considered, was or at least might reasonably be justified in deliberately killing the other party with a knife. To accede to that proposition in these circumstances would I think be close to a return to the law of the jungle.
6.26The Court of Appeal upheld the decision of the trial Judge, stating:
… what is reasonable force to use to protect oneself or another when faced with a threat of physical force must depend on the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force. There may well be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately. If so, it will not be reasonable to make a pre-emptive strike.
6.27The Court considered that:
In our view what is reasonable under the second limb of s 48 and having regard to society’s concern for the sanctity of human life requires, where there has not been an assault but a threatened assault, that there must be immediacy of life-threatening violence to justify killing in self-defence or the defence of another.
6.28The Court of Appeal concluded that “it would be impossible for the jury to entertain a reasonable doubt on the point” as there was no imminent danger to be averted by instant reaction, and Ms Wang was not held hostage and was free to seek protection in other ways. The decision in Wang is, therefore, authority for need for immediacy of life-threatening violence to justify killing in self-defence.
Cases since WangTop
6.29Wang was decided over 25 years ago, and has been considered and followed in the higher courts on a number of occasions. Cases decided since Wang have done two things. First, they have confirmed the requirement for imminence. Second, they have clarified the approach to considering alternatives to the use of force.
6.30Because cases involving victims of family violence claiming self-defence are uncommon the higher courts have not considered the operation of imminence and lack of alternatives in this specific context since Wang. Accordingly, subsequent consideration of Wang has typically been in markedly different factual circumstances involving a male defendant and a male homicide victim. They establish how the law of self-defence is to be applied in a general sense rather than in the specific context of family violence.
The ongoing requirement for imminence
6.31Early indications following Wang were that the requirement for imminence was not being strictly enforced by the courts. In the early 1990s cases of R v Zhou and R v Oakes, both involving the use of force by a victim of family violence against their abuser, the question of self-defence was left to the jury even though in neither case was there an immediate threat of harm present on the facts. Neither case cited Wang. The Ministry of Justice quite reasonably inferred from these cases that Wang was not being strictly followed and thus victims of family violence were not being improperly excluded from relying on self-defence. As a result, the Government did not implement the Law Commission’s recommendations on self-defence in the 2001 Report, preferring instead to allow the courts to continue to develop the law on a case-by-case basis.
6.32However, more recent Court of Appeal decisions, albeit not in cases in the family violence context, confirm that imminence remains central to the law of self-defence. In R v Richardson, the appellant appealed his convictions for firearms possession. At trial he had claimed self-defence, arguing that he was under a “constant” threat of attack from an acquaintance as a result of his involvement as a prosecution witness in a murder trial. Dismissing his appeal against conviction, the Court of Appeal, while not citing Wang, concluded that:
[T]here was no suggestion that there was any imminent danger … the case seems to have been predicated on the quite unsustainable premise that if a person subjectively believed that they were under constant threat, they would be able to carry loaded weapons. That is not the law and the ground is unmeritorious.
6.33The FVDRC considers that this decision has the potential to present a legal barrier to raising self-defence for a victim of family violence who is responding to an “omnipresent threat which has the potential to crystallise at any point in time and which the police are unable to defuse”.
6.34More recently, two Court of Appeal decisions have considered and approved Wang, and confirmed the role of imminence and lack of alternatives in any claim of self-defence.
6.35In Vincent v R, the appellant was a prison inmate who stabbed another inmate four times in the neck. The attack followed an incident in the exercise yard four days earlier, where it was alleged the victim deliberately kicked a basketball towards Mr Vincent. At trial, the appellant claimed he was acting pre-emptively in self-defence in response to a threat of future violence from the victim. He appealed his conviction for wounding with intent to cause grievous bodily harm on the ground that the trial Judge erred in withdrawing self-defence from the jury.
6.36The Court of Appeal referred to Wang and observed that, in certain circumstances, self-defence may be available where a defendant takes pre-emptive action to defend himself or herself (or another) from a perceived threat. The Court said:
While the imminence of the threat is not treated as a distinct or separate requirement, the authorities have emphasised that the imminence or immediacy of the threat is a factor that is to be weighed in assessing whether the defence is available. This is a question of fact and degree. Amongst other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action are to be considered. The defendant must have seen himself or herself as under a real threat of danger and not merely believe there may be some future danger.
6.37The Court of Appeal went on to consider Mr Vincent’s claim of self-defence against the concepts of imminence, lack of alternatives and proportionality and upheld the Judge’s decision to withhold self-defence from the jury, finding “there was no realistic possibility that the jury could entertain a reasonable doubt” that the defendant was acting defensively in terms of section 48. Mr Vincent sought leave to appeal to the Supreme Court, but that was declined. The Supreme Court observed:
Although the proposed appeal raises questions as to when self-defence is available in the case of a pre-emptive strike, the absence of immediacy in relation to the alleged threat and the alternatives available to the applicant were material considerations. In dealing with this part of the case, the Court of Appeal applied settled law.
6.38The concepts of imminence and lack of alternatives were considered again by the Court of Appeal in the case of Afamasaga v R. The prosecution’s case was that, with five others, Mr Afamasaga, a gang prospect, planned to shoot the leader of a rival group. The plan involved provoking the victim to turn up at an address where he knew he would find Mr Afamasaga and his associates. As the victim got out of the car and walked towards the house the appellant, who was in a darkened bedroom about 10 to 12 metres away, shot him. Mr Afamasaga claimed self-defence, arguing that he feared for his life and that he thought he saw a pistol in the deceased’s hands. The trial Judge’s summing up to the jury included the following passage:
Whether the force used was reasonable, will require consideration of the perceived imminence of the 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 Mr Afamasaga was aware.
6.39Mr Afamasaga was convicted and appealed, arguing that the trial Judge failed to direct the jury adequately on self-defence. Citing Wang, the Court of Appeal said: “As the Judge properly emphasised, a threat has to be ‘imminent or immediate [with] no alternative available’ for a pre-emptive strike to amount to self-defence”.
6.40The Court of Appeal concluded that the Judge directed the jury correctly on the elements of self-defence.
6.41While the cases of Richardson, Vincent and Afamasaga did not involve victims of family violence who had used force against their abusers, as we read them these cases comprise general statements about the law of self-defence that could apply equally to a defendant in that context. Afamasaga, in particular, clearly confirms that imminence and lack of alternatives are necessary elements of any claim of self-defence. It would be open to the Court of Appeal or Supreme Court to take a different approach in a specific context. However, given that cases involving victims of family violence who kill their abusers are uncommon and given how recently Vincent and Afamasaga were decided, it seems unlikely that the roles of imminence and lack of alternatives will be revisited in the near future.
Clarifying the approach to alternative options to the use of force
6.42In Wang the Courts determined that self-defence was not available because the defendant “was not held hostage and was free to seek protection in other ways”. However, as one commentator notes:
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 with an apparent absence of alternatives”.
6.43Several commentators noted with concern that the approach in Wang meant that reasonableness was considered in that case on an almost purely objective basis, ignoring the defendant’s subjective beliefs about the options available to her. Ms Wang had testified that “I had to kill him, there was no other way”. If this was taken as being, in the words of section 48, the “circumstances as she believed them to be”, then “it is hard to see how the question of the reasonableness of the force used should not have been left to the jury”. It was argued the proper interpretation of section 48 is that any belief a defendant has about an available option is a “circumstance” he or she believes to exist for the purposes of section 48 and must, therefore, be treated as if it was correct.
6.44It appears that this issue has been clarified by the Court of Appeal in the subsequent cases of Fairburn v R, McNaughton v R and Afamasaga v R. In Fairburn, the Court of Appeal said: “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”.
6.45As one commentator notes, if self-defence in Wang was withheld because the defendant’s belief that “she had to kill him, there was no other way” was unreasonable, although honestly held, that seems contrary to the approach in Fairburn.
6.46In the second case, McNaughton, the Court of Appeal considered the finer issue of the appellant’s belief about the options available to avoid the use of force. The appellant had shot the deceased during a pre-arranged fight between rival groups and claimed self-defence. A core component of the prosecution’s case was that he had a number of alternative options when he fired the gun. He could have fired into the ground or the air or fled. The trial Judge, in a written memorandum for the jury, identified the issue as whether there were “other options that he knew he might take in the time available, such as getting help or fleeing”. Responding to a question from the jury during deliberations, Miller J gave the following direction:
The belief that he had other options is a dimension of reasonable response. In other words, you may conclude that the force used was unreasonable if the Crown have proved to beyond reasonable doubt, – and that is a matter for you – that he knew he had other options available to him and those options were reasonably available to him in the time he had to react. That is for you to assess.
6.47Mr McNaughton appealed his conviction for murder, arguing the prosecutor failed in cross-examination to directly challenge his claim that he did not have time to think of other options. The Court of Appeal, considering the sufficiency of Miller J’s direction, said:
As noted, the prosecutor had not questioned [the defendant] on the options said to be available – principally, firing the gun into the air or the ground or fleeing. The first or subjective stage of the self-defence inquiry had not been tested by the Crown. The situation required that the Judge direct the jury to consider whether the Crown had proved by an appropriate evidential foundation both that, to use the Judge’s words, Mr McNaughton (a) “knew he had other options available to him” and (b) “those options were reasonably available to him in the time he had to react”. An explicit direction of this nature was required but was not given.
6.48Accordingly, the Court of Appeal concluded that the trial Judge’s direction was insufficient and thus in error. For this and other reasons, the Court allowed the appeal, quashing the appellant’s conviction and ordering a retrial.
6.49The third and most recent case, Afamasaga, is discussed in detail at paragraph [6.38] above. In that case, the appellant challenged his conviction for murder on the basis that there were deficiencies in the trial Judge’s summing up, including on self-defence. The Court of Appeal was satisfied that the trial Judge directed correctly on the elements of self-defence, which included the direction that whether the force used was reasonable requires consideration of “whether there were alternative courses of action of which Mr Afamasaga was aware”.
6.50In our view, the decisions in Fairburn, McNaughton and Afamasaga clarify that the reasonableness of a defendant’s use of force should be assessed objectively but on the basis of any beliefs the defendant held about the “circumstances”. This includes beliefs both as to the nature and seriousness of the threat and the options available to avoid the use of force. Where a victim of family violence kills their abuser and claims self-defence, this appears to allow the jury to go further than the courts’ consideration of alternatives in Wang. It allows them to consider, for example, how any language and cultural barriers could have influenced the defendant’s assessment of the situation and their ability to leave and whether they could have sought effective protection from going to the Police. In some cases, it may be reasonable for the jury to conclude that leaving was not a viable alternative.