Contents

Chapter 6
Self-defence and family violence – is there a problem?

Proportionality

6.51When assessing the reasonableness of defensive force, the decision maker must consider, alongside the imminence of the threatened harm and alternatives to the use of force, whether the defensive reaction “was reasonably proportionate to the perceived danger”.485
6.52As discussed above, due to differences in size and strength, women are likely to use a weapon, typically a kitchen knife, to defend themselves against an abusive partner armed only with fists. Further, a victim of family violence is likely to be responding to a threat that emanates from a cumulative pattern of harm rather than a single threat or event. For these reasons, many argue that it can be difficult to apply a simplistic measuring process based on the proportionality of the force used against the threatened harm.486 A defendant’s actions may not “look” proportionate, particularly if all the circumstances are not understood.487 When a victim of family violence kills their abuser in a non-confrontational situation, proportionality is even more difficult to measure, because at that particular moment, the deceased was incapable of using force.

The requirement for proportionality in New Zealand case law

6.53The term “proportionality” can create confusion. Sometimes it is used and understood simply as a synonym for reasonableness,488 but this can be misleading because a disproportionate response can still be reasonable. As the Court of Appeal noted in R v Howard, reasonable force:489

… may include force which is not in reasonable balance with the believed threat, if for instance the accused has no real choice of means, other than a means which might be seen in the normal course as way out of balance with the threat.

6.54The recent Court of Appeal decision of Afamasaga approved the statement of the law of self-defence by Woolford J in the High Court, set out at paragraph [6.38] above, which identifies “reasonable proportionality” as a factor in – but not a replacement for – the assessment of reasonable force. In our view, this is the right approach because it acknowledges that a disproportionate response may still be reasonable.

6.55Some argue that the law gives conflicting signals about the degree of force that may permissibly be used in self-defence.490 On the one hand, the law does not require strict proportionality; a person defending himself or herself “cannot weigh to a nicety the exact measure of his [or her] necessary defensive action”.491 On the other hand, section 62 of the Crimes Act provides that everyone authorised to use force is criminally liable for any excess. In this discussion, we are concerned with force that may be disproportionate but still reasonable – rather than force that is excessive and unreasonable.
6.56The concepts of proportionality and imminence are interconnected. In Wang the Court of Appeal integrated its assessment of these factors,492 noting:493

… prior to his falling asleep on his bed in a drunken state, her husband had not armed himself in any way to carry out his threat to kill … [therefore] one could not reasonably have considered that those threats might be carried out by him, “at any moment”, in his then state.

6.57Proportionality was also in issue in the 1995 case of R v Oakes, discussed at paragraph [6.31] above.494 In that case, the defendant and her children had been physically, sexually and emotionally abused by her partner for 11 years. Ms Oakes had previously complained to Police, obtained protective orders against the deceased and had fled several times to a women’s refuge.495 One night, after being verbally abused and threatened and fearing a serious beating, Ms Oakes spiked the deceased’s coffee with more than 30 sleeping pills. Ms Oakes claimed that her actions were in self-defence, and that she was acting in a state of fear and panic. The prosecution argued that this was a case of premeditated murder, committed in order to rid the defendant of a man who would not leave her alone and to rid her daughter of her abuser.496 There was evidence that Ms Oakes had spiked the deceased’s coffee the previous day “to obtain some respite from him”,497 and a witness for the prosecution, P, gave evidence that Ms Oakes told her that she wanted to kill him and that, once the deceased “was out of it” from the drugged coffee, she proceeded to eye drop other drugs into his throat.498 Ms Oakes denied this, but her claim of self-defence was rejected by the jury, and she was convicted of murder.
6.58Ms Oakes appealed her conviction, arguing that the Judge’s summing up, both on the relevance of battered woman syndrome (which we discuss at paragraphs [6.71]–[6.74] below) and on the requirements of self-defence, was inadequate.499 The trial Judge had explained the requirements of self-defence by comparing “shooting a person about to slap one in the face on the one hand, and shooting an assailant wielding an axe on the other”.500 The appellant argued this example was “male-oriented and not helpful in the context of this case”.501
6.59The Court of Appeal noted that the reasonableness of the defendant’s response is to be judged in the light of her perception of the threat and, accordingly that “the use of more drastic means than might otherwise be thought appropriate” might be justified.502 The Court then said:503

It is important too in the assessment of the nature of the woman’s response to remember her physical limitations. The point was well put by Utter J delivering the majority judgment of the Supreme Court of Washington in State of Washington v Wanrow Wash 559 P 2d 548 (1977) at p 558:

“In our society women suffer from a conspicuous lack of access to training in and the means of developing those skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons.”

He went on to caution against leaving the jury with the impression that the objective standard to be applied is that applicable to an altercation between two men.

6.60However, in dismissing the appeal the Court concluded that, in relation to the trial Judge’s explanation of self-defence:504

The examples the Judge gave of justified and unjustified self-defence may not have been entirely apposite, but nonetheless they did demonstrate the need for proportionality of response, which was certainly relevant in this case, bearing in mind the quantity of drugs used in comparison with the drugged coffee the morning before and, if it was accepted, [P’s] evidence about the eye-dropper.

6.61Despite the Court of Appeal’s comments on matters of legal principle in Oakes, confirming the need to take into account the circumstances as the defendant believes them to be, including physical disparities and the history of abuse in the relationship when assessing whether the force used was reasonably proportionate, the application of those principles on the facts appears to have been grounded in what is now an outdated understanding of family violence, focused on the psychology of the defendant and battered woman syndrome. As we discuss below, the Court considered that the poisoning could not be seen as a reasonable or appropriate response “without the emotional fragility and the altered perception that are features of [battered woman] syndrome”.505 The passage quoted at paragraph [6.60] above seems to focus on the imminent threat posed by the deceased, and what response – or how many pills – was in balance with that imminent threat, rather than viewing the threat faced as emanating from a cumulative pattern of harm.

6.62With a proper understanding of all the circumstances, however, based on an understanding of family violence that reflects contemporary social science, we consider the requirement for reasonable proportionality is capable of accommodating victims of family violence.

485At [43].
486Kim, above n 394, at 7; McKenzie, Kirkwood and Tyson, above n 394; Toole, above n 394, at 257; Mark Campbell “Pre-Emptive Self-Defence: When and Why” (2011) 11 OUCLJ 79 at 96–99; Bradfield, above n 394, at 77–78; Seuffert, above n 427, at 301–302; Yeo, above n 394, at 108; Law Reform Commission of Western Australia, above n 427, at 165–166; Law Reform Commission of Ireland Defences in Criminal Law (LRC 95, 2009) at [22.04]; Victorian Law Reform Commission, above n 395, at 83; and Law Commission of England and Wales, above n 415, at [4.20].
487Victorian Law Reform Commission, above n 395, at 83.
488For example, see R v McGrath [2010] EWCA Crim 2514, [2010] All ER (D) 185 at [5], in which the Court said the “critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)”. Similar difficulties arise with the term “excess force”, which has a special meaning in s 62 of the Crimes Act 1961 and is also associated with the partial defence of “excessive self-defence”, which is not recognised in New Zealand. Section 62 of the Crimes Act provides that everyone authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.
489R v Howard (2003) 20 CRNZ 319 (CA) at [26].
490AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at 528; and Warren Brookbanks “Partial Defences to Murder in New Zealand” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 271 at 286.
491Palmer v R [1971] All ER 1077 (PC) at 1088, referred to in the New Zealand Court of Appeal in R v Kerr [1976] 1 NZLR 335 at 344.
492Seuffert, above n 427, at 317.
493R v Wang, above n 443, at 537.
494R v Oakes, above n 454.
495At 683. For a discussion of the facts in Oakes, see also Seuffert, above n 427, at 319.
496At 680.
497At 677.
498At 679.
499At 675.
500At 681.
501At 681.
502At 676.
503At 676.
504At 683.
505At 679.