Chapter 7
Proposals to reform self-defence

Other procedural matters

Jury directions

7.88In addition to the introduction of expert evidence, another way to correct any misconceptions and assumptions about family violence is through the judge’s directions to the jury. In jury trials, it is the role of the judge to direct the jury on the relevant law and facts in issue. Jury directions should be tailored to the particular facts of the case and questions in issue.647 Trial judges are guided by higher court decisions on appropriate directions and by the guidance set out in the Criminal Jury Trial Bench Book, maintained by the Institute of Judicial Studies.648
7.89Some jury directions are prescribed by legislation. The Evidence Act includes jury directions about unreliable evidence, offering evidence in different ways, warnings about giving undue weight to evidence that a defendant lied and warnings of special caution in relying on identification evidence.649

7.90Legislated “standard” jury directions, intended to correct erroneous beliefs juries may hold, are rare. There is only one example in the Evidence Act in the context of sexual offending. Section 127 provides:

127 Delayed complaints or failure to complain in sexual cases

(1) Subsection (2) applies if, in a sexual case tried before a jury, evidence is given or a question is asked or a comment is made that tends to suggest that the person against whom the offence is alleged to have been committed either delayed making or failed to make a complaint in respect of the offence.

(2) If this subsection applies, the Judge may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence.

7.91The advantage of legislating for a specific jury direction to address juror misconceptions is that it can fill a “gap” where expert evidence is not introduced. However, if it is too removed from the facts of the case, it may be unlikely to have any positive effect. Research suggests, in the context of sexual offending, jury directions aimed at addressing stereotypical and biased expectations of witness behaviour may be more effective in preventing preconceptions if given at the beginning of the trial.650 Directions given later, during the judge’s summing up of the case, may have little or no effect on verdicts.651
7.92The Supreme Court recently considered the different methods for addressing juror misconceptions in sexual offending cases in DH v R.652 It observed:653

We do not think it is appropriate to be prescriptive about how erroneous beliefs or assumptions are best to be countered in criminal trials. Judicial directions, s 9 statements and expert evidence are all possibilities. We do, however, consider that a cautious approach needs to be taken to the ambit of expert evidence given at trials of this kind to ensure that such evidence is confined to what would be substantially helpful, there is focus on live issues and that the evidence is not unduly lengthy or repetitive and is expressed in terms that address assumptions and intuitive beliefs that may be held by jurors and may arise in the context of the trial.

Jury directions of the type used in England and Wales on topics where there is a general acceptance of the topic are a worthwhile alternative to expert evidence. If all the areas that would otherwise be covered by expert evidence are amenable to jury direction, this would obviate the need for the evidence and it would no longer be substantially helpful. If not, the jury directions could reduce the scope of the evidence to topics not covered in the directions.

7.93Accordingly, jury directions may be appropriate to counter juror misconceptions where there is a general acceptance of the topic and little controversy. If a topic is amenable to judicial direction, then that may reduce the need for expert evidence.

7.94In Victoria, VLRC in its Report Defences to Homicide recognised that while those with expertise in family violence are best placed to address misconceptions, the trial judge has an important role in assisting the jury to recognise the significance of prior violence and to make the connections between expert evidence and the issues at trial.654 Where expert evidence is not led, the judge’s directions to the jury take on even greater significance. However, the VLRC did not favour legislating to require a set jury direction to be delivered when a history of family violence is raised:655

The Commission accepts that a ‘one size fits all’ approach to jury directions will not allow sufficiently flexibility. Moreover, we think that a standard charge suffers from the fundamental difficulty of the trial judge intruding into territory which belongs exclusively to the jury. But it is in many cases vital, if the trial is to be fair, that relevant matters be brought to the jury’s attention. In our view, this should be the role of social framework evidence, and of the experts who are appropriately qualified to give it. The trial judge will play an important role in highlighting the relevance of a history of abuse, and of the social framework evidence, to the particular facts in issue in the case.

7.95Subsequently, however, in 2014, the Victorian Government introduced a standard jury direction aimed at juror misconceptions around family violence, observing that many members of the community do not fully understand the dynamics of family violence and that jury directions can play an important role in addressing juror misconceptions.656
7.96The Jury Directions Act 2015 (Vic) provides that, where requested by defence counsel or the defendant, the trial judge must give a direction on certain matters unless there are good reasons for not doing so.657 The direction may be given at any time during the trial.658 Where relevant, the judge must inform the jury that self-defence is in issue and that evidence of family violence may be relevant to determining whether the defendant acted in self-defence.659 The judge may also include any of the following matters in the direction:

(a) that family violence—

(i) is not limited to physical abuse and may include sexual abuse and psychological abuse;

(ii) may involve intimidation, harassment and threats of abuse;

(iii) may consist of a single act;

(iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;

(b) if relevant, that experience shows that—

(i) people may react differently to family violence and there is no typical, proper or normal response to family violence;

(ii) it is not uncommon for a person who has been subjected to family violence—

(A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;

(B) not to report family violence to police or seek assistance to stop family violence;

(iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—

(A) family violence itself;

(B) cultural, social, economic and personal factors;

(c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence or under duress (as the case requires) in relation to the offence charged.

7.97In the Issues Paper, we sought views on the desirability of a statutory jury direction and asked what matters it should address. Those submitters in favour included the Public Defence Service, who thought there would be little utility in adopting Recommendation 5 above without an accompanying jury direction, and the FVDRC, who noted the importance of jury directions to address the misunderstandings surrounding the cumulative and compounding effect of family violence and victim entrapment. Members of the relevant committees of the New Zealand Law Society660 noted, however, a lack of evidence that acquittal or conviction rates are a result of misconceptions and were concerned that a “one size fits all approach” would be misguided. Experts in jury research we spoke with stressed the importance of any jury directions being tailored and flexible and noted that judicial education could lead to appropriate jury directions in any event. One submitter recommended that any supporting legislative reforms be deferred until the operation of any changes to section 48 can be reviewed.

7.98In the Commission’s view, it is preferable that juror misconceptions be addressed by expert evidence rather than through the judge’s direction to the jury. While we note there may be an issue with expert availability, given the relative infrequency of these cases, we think that the issue is best addressed by encouraging greater use of expert evidence. This is the intended effect of Recommendation 7 above which provides a clear statement of the type of evidence that may be relevant to claims of self-defence.

7.99In relation to jury directions on the operation of self-defence if Recommendation 5 is adopted, we are of the view that appropriate jury directions will naturally follow. An express jury direction is, therefore, unnecessary.

Withholding self-defence from the juryTop

7.100A final issue in relation to self-defence is the role of a trial judge to withhold claims of self-defence from the jury. In R v Wang, the Court of Appeal confirmed that a trial judge may withhold self-defence from the jury if he or she considers no jury could properly regard the defendant’s use of force as reasonable.661 This has been confirmed in subsequent cases.662
7.101The Law Commission in its 2001 Report considered that the determination of what is reasonable force in self-defence calls for the application of community values, and contrary to Wang, that issue should always be left to the jury.663 The Commission observed that a judicial filter would remain because a trial judge would still have to decide whether, on the evidence, there was a reasonable possibility that the defendant intended to act defensively.664
7.102This issue was considered by the Court of Appeal in R v Bridger.665 In that case, the appellant argued, consistent with the Commission’s recommendation in 2001, that the question of the reasonableness of the force used in the perceived circumstances should always be left as a matter for the jury.666 However, the Court considered that a distinction between ruling upon whether the accused might possibly have been acting defensively and ruling upon whether, in so acting, the accused used no more than reasonable force was:667
… more than a little artificial since the question of whether the accused acted purely defensively in the perceived circumstances is surely to be assessed in part by reference to what the accused did in response to those circumstances … Although the reasonableness of the response is a separate question, it is so closely connected with whether the response was defensively motivated that we can see no sensible reason for allowing the Judge to make an assessment of the first two matters but not the third in deciding whether self-defence should be left to the jury.668
7.103An assessment of reasonableness involves the application of the community’s sense of justice. Community views on what is reasonable can, and do, change over time. We consider that only in exceptional cases should the issue of self-defence be withheld from the jury if there is evidence of a reasonable possibility that the defendant intended to act in self-defence. Vincent may be regarded as such a case.669 However, we do not consider there is a need to recommend a change to the general operation of section 48 in this regard. We note the Court of Appeal’s comments in Bridger, as quoted in paragraph [7.102] above. Further, as we apprehend it, the problem identified in the Commission’s 2001 Report was the Court’s decision to withhold self-defence in the case of Wang on the basis that an imminent threat was not made out on the evidence. While we agree self-defence should have gone to the jury in that case, the effect of Wang is most appropriately mitigated by legislative reform to remove the requirement for imminence rather than by limiting judicial discretion to withhold claims of self-defence from the jury. We therefore make no recommendations in this regard.
647Simpson v R [2010] NZCA 140 at [100], citing R v Tukaki CA360/05, 14 June 2006 at [12].
648The Bench Book is a reference guide, based on Court of Appeal decisions, for High Court judges issuing directions to the jury. Unlike the Crown Court Bench Book in the United Kingdom, it is not publicly available. See Christopher Pitchford Crown Court Bench Book - Directing the Jury (Judicial Studies Board of England and Wales, 2010).
649Evidence Act 2006, ss 122–124 and 126.
650Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 371 at 372.
651At 372.
652DH v R [2015] NZSC 35, [2015] 1 NZLR 625.
653At [110]–[111].
654Victorian Law Reform Commission, above n 561, at 188–193.
655At 192.
656(20 August 2014) VicPD LA 2834.
657Jury Directions Act 2015 (Vic), s 58.
658Section 58(5).
659Section 59.
660The Criminal Law Committee, Youth Justice Committee and Family Law Section.
661R v Wang, above n 550. This case is discussed in detail in Chapter 6 at paragraphs [6.24]–[6.28].
662Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63; and Vincent v R, above n 582.
663Law Commission, above n 578, at 14–15.
664At 14.
665R v Bridger (2002) 19 CRNZ 676 (CA).
666At [15].
667At [20].
668The three matters referred to in this quote are the three elements of self-defence discussed in Chapter 5: (a) What were the circumstances as the accused honestly believed them to be? (b) In those circumstances, was the accused acting in the defence of himself or another? (c) Was the force used reasonable against the circumstances as the accused believed them to be?
669In this case, the Court of Appeal upheld the trial Judge’s decision to withhold self-defence from the jury, and the Supreme Court dismissed the appellant’s leave to appeal. The defendant was a prison inmate who stabbed another inmate four times in the neck. The attack followed an incident on 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. The decisions of the trial Judge, Court of Appeal and Supreme Court are discussed in Chapter 6. See Vincent v R, above n 582; and Vincent v R [2015] NZCA 201.