Proposals to reform self-defence
Proposals for substantive reform
7.4In this section, we consider the different options for substantive reform of self-defence and whether reform should be limited to victims of family violence and/or homicide offences.
7.5In the Issues Paper, we set out three different options for substantive reform of self-defence:
- Option 1 – introduce a legislative provision clarifying that, under section 48, the force used by the defendant may be reasonable even though the defendant is responding to harm that is not immediate or uses force in excess of that involved in the harm or threatened harm.
- Option 2 – amend section 48 to replace by statute the Wang concept of imminence with that of “inevitability”.
- Option 3 – introduce a new complete defence to extend the concept of self-defence to apply to the specific circumstances in which victims of family violence kill their abusers out of necessity.
Option 1: Clarifying the test for self-defence
7.6The first option we put forward in the Issues Paper was to clarify the operation of section 48 in a new provision in the Crimes Act 1961. The intended effect of such a provision would be to reverse the presumption in R v Wang that a victim of family violence who kills their abusive partner is not acting in self-defence unless the threat is capable of being carried out immediately and to avoid undue emphasis being placed on the proportionality of the level of force used by the defendant against the force used or threatened by the deceased. It would not alter the substantive requirements of self-defence in section 48, only clarify how those requirements should be applied. In particular, the concepts of imminence and proportionality would remain relevant in assessing whether the force used was reasonable but would no longer act as a barrier or threshold for victims of family violence to successfully relying on self-defence.
7.7Similar reforms have been pursued in Victoria and Western Australia, and the operation of those reforms is discussed below.
The Victorian self-defence reforms
7.8In response to recommendations of the Victorian Law Reform Commission (VLRC) in its 2004 Report Defences to Homicide, the Victorian Crimes Act 1958 was amended to include the following provision, now found in section 322M(1) of that Act:
Without limiting section 322K [self-defence], for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person’s conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if—
(a) the person is responding to a harm that is not immediate; or
(b) the response involves the use of force in excess of the force involved in the harm or threatened harm.
7.9Bench Notes issued by the Judicial College of Victoria explain that this provision “clarified existing law”, namely that:
… a person is not required to wait until an attack is in progress or immediately threatened before using defensive force. S/he is entitled to take steps to forestall a threatened attack before it has begun (Osland v R (1998) 197 CLR 316). Similarly, the force used is not required to be precisely proportionate, as long as the accused believed it was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645) and the conduct was a reasonable response in the circumstances.
7.10The operation of the self-defence reforms were reviewed by the Victorian Department of Justice in 2010 and again in 2013. In 2010, the Department identified that the self-defence reforms had been relevant to two decisions to discontinue proceedings where there was clear evidence that the defendant had killed a family member in response to ongoing family violence. It concluded, therefore, that the reforms had “introduced significant improvements to the criminal justice system in dealing with situations in which a woman kills in response to long-term violence”.
7.11Some commentators, however, caution that celebration of the success of the Victorian self-defence reforms might be premature. Both cases in which proceedings had been discontinued involved “traditional notions of self-defence” and, in particular, had concerned responses to an immediate threat. In 2013, the Department of Justice noted that the self-defence reforms had still not been tested in the context of a non-immediate threat. How the reforms might operate in that context, the Department considered, was “exceptionally difficult to answer in the abstract”, but that:
What is essential for these purposes is that it is well within the operation of the laws of self-defence that a woman could be acquitted on the basis of self-defence in this situation. Whether that is the case as a matter of fact would need to be determined by a jury on a case by case basis.
7.12Since then, it appears self-defence has been successfully relied on in at least one case where a victim of family violence (in that case, the male de facto partner of the deceased) killed an abusive partner in the context of a non-immediate threat.
7.13We note that the full impact of the self-defence reforms in Victoria may still be unknown, given the operation of defensive homicide in that jurisdiction until 2014. Defensive homicide, discussed in Chapter 4, was noted by the Department of Justice as having the unintended effect of “shift[ing] the focus of debate from the adequacy of complete self-defence to defensive homicide”.
The Western Australian self-defence reforms
7.14Self-defence in Western Australia was codified following a review of homicide by the Law Reform Commission of Western Australia. Adopting the Commission’s recommendations to clarify the role of imminence, the statutory provision on self-defence in that jurisdiction now requires that:
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
7.15The general operation of this provision was considered by the Supreme Court of Western Australia in the case of Goodwyn v State. Buss JA explained the law as follows:
So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
7.16The first and second elements are similar to the subjective and objective requirements in section 48 of the New Zealand Crimes Act, but the third and fourth elements (derived from subsection (c) of the Western Australian self-defence provision) are not applicable in New Zealand.
7.17In relation to imminence, Mazza JA in Goodwyn noted:
The law as it previously stood assumed that self-defence would only arise in a case of immediate threat which was required to be met with an immediate response. The current provisions contemplate a person acting in respect of a harmful act which is not imminent.
7.18The jury direction given by the trial Judge in Goodwyn on the relevance of imminence to the first element (not in issue on appeal) was as follows:
The law says that people are not required to wait until they are injured or killed, or other persons are injured or killed, before defending themselves or that person. They are entitled to use force before that situation arises. As I've said, the threat need not be imminent. It is sufficient if the person believes that his act is necessary to defend himself from such a threatened assault.
7.19Accordingly, as one commentator has observed, the Western Australian self-defence reforms “[put] it beyond doubt that response[s] to on-going domestic violence can come within the defence whether or not the accused responded at the time of a physical attack”.
7.20Unlike the reforms pursued in Victoria, the Western Australian self-defence provision is not limited to where family violence is in issue and does not clarify the requirement for proportionality.
Should Option 1 be limited to family violence?
7.21A further issue is whether Option 1, if recommended, should be limited to where a defendant is responding to family violence. Some argue that any clarification of self-defence should have general effect, as in Western Australia, because it may be equally relevant in non-family violence situations. It may be relevant, for example, where a defendant is held hostage and uses pre-emptive force. We recently published our Report Strangulation: The case for a new offence, which recommends a separate offence of strangulation to address the problems with prosecuting strangulation offenders in the family violence context. We concluded, however, that the new offence should be of general application, as the problems identified are likely to apply equally to other contexts, and the requirement to prove the presence of family violence circumstances may impede prosecution. We considered that limiting a new offence to family violence circumstances would risk anomalous and inconsistent treatment of different classes of offenders whose conduct may be equally culpable.
7.22In this context, however, any perceived widening of self-defence may lead to greater use of the defence by those prone to violence. This was the experience in Victoria in relation to defensive homicide, which, as we explained in Chapter 4, was used primarily by violent men rather than the victims of family violence for whom it was intended. We note, however, that this risk cannot be entirely avoided even if Option 1 were limited to family violence. For example, a predominant aggressor could potentially claim they killed a primary victim in self-defence and seek to rely on Option 1, particularly if there is evidence of a history of violence on both sides.
7.23Further, if Option 1 has general application, there is a risk that achievement of the policy objective of the reform – to accommodate the experiences of victims of family violence who kill in self-defence – could be undermined, as it would not be apparent on the face of the provision.
Option 2: Replace imminence with the concept of “inevitability”Top
7.24The second option is to amend section 48 itself to expressly replace the Wang concept of imminence with a new concept of “inevitability”.
7.25This option arguably sits closer to the Law Commission’s recommendation in its 2001 Report, which was to “make it clear that there can be fact situations in which the use of force is reasonable where the danger is not imminent but is inevitable”. That view was endorsed by the VLRC and the draft provision it put forward in its Report, Defences to Homicide, provided as follows:
Without limiting sub-section (2) [self-defence]–
(a) a person may believe that the conduct is necessary; and
(b) the person’s response may be reasonable
when the person believes that the harm to which he or she responds is inevitable, whether or not it is immediate.
7.26This approach, however, was not adopted in Victoria and has been criticised for several reasons. First, it is argued that the inclusion of a legal requirement of “inevitability” would extend the current judicially determined parameters of self-defence, which might have the unintended consequence of allowing cases of uncertain merit to succeed. For example, considering the dangerous nature of prison environments or gang culture (both being contexts in which self-defence has been recently claimed – but rejected – in New Zealand), changing the test from imminence to inevitability might allow prisoners and gang members to justify pre-emptive strikes on the basis of inevitable future harm from other prisoners or rival gang members.
7.27Second, it is argued that it would be more difficult for a jury to assess whether a danger is “inevitable” compared with “imminent”. Imminence is a measure of proximity, whereas inevitability is a measure of “moral certainty” and is almost impossible to establish (because the future is unknowable), so exactly how “inevitable” must a threat be to justify self-defence? An inevitability standard may necessarily involve speculation and dangerously raise the level of error when predicting inevitable violence at some future but unspecified point in time. A judge may need to give detailed directions to a jury to ensure they are aware of the difference between imminence and inevitability, and these issues may result in a further body of appellate case law to clarify how “inevitable” the threat must be. These issues were considered by the VLRC when it recommended the provision set out at paragraph [7.25] above. It concluded, however:
The question of inevitability under this formulation focuses on the subjective belief of the accused. There is no requirement that inevitability be established in an objective sense, nor is it implied that by establishing that the accused believes the threat was inevitable the objective test of reasonableness will be satisfied. Rather, the provision aims to ensure that the actions of an accused person are not automatically excluded from the scope of the defence on the basis that the harm threatened is not immediate. Ultimately the question of whether the accused acted reasonably in self-defence will remain one for the jury.
Option 3: A new self-defence provision for victims of family violenceTop
7.28The third option we explored in the Issues Paper is a new, complete defence that applies only where a defendant is responding to family violence and focuses on the underlying principle of self-defence – necessity. A separate provision would exist alongside the “traditional” self-defence provision in section 48 and would be tailored to take account of the nature of the danger that victims of family violence face.
7.29The Law Commission in 2001 considered but rejected a separate defence for victims of family violence, considering it was preferable that the general requirement of reasonableness in section 48 be interpreted so that it can incorporate the use of defensive force against violence that may not be imminent.
7.30We are not aware of any comparative jurisdictions adopting a separate, complete defence for victims of family violence. Queensland is the only jurisdiction to have a specific defence for victims of family violence, but that only operates as a partial defence to murder. A new complete defence was proposed, but not adopted, in Western Australia by the Taskforce on Gender Violence, established by the then Chief Justice the Hon David Malcolm AC QC. The Taskforce proposed a new complete defence formulated as follows:
Conduct is carried out by a person in self-defence if the person is responding to a history of personal violence against herself or himself or another person and the person believes that the conduct was necessary to defend himself or herself or that other person against the violence.
7.31Law reform bodies that have addressed this issue have generally considered it preferable if existing general defences are made capable of accommodating the experience of family violence victims rather than introducing separate defences for this specific category of defendant. The risks of creating a separate defence were identified by the Australian and New South Wales Law Reform Commissions in their joint report on family violence in 2010:
The Commissions consider that criminal defences should not recognise the circumstances of family violence victims in an ‘atypical context’, or typecast the reactions of family violence victims who kill as the product of ‘extraordinary psychology.’ There is substantial force in stakeholders’ arguments that separate, family-violence specific defences may result in the differential treatment of persons who have killed in response to family violence, compared with those who have killed in response to non-familial violence. To this end, it is preferable for family-violence related circumstances to be integrated into existing defences of general application. In the Commissions’ view, existing defences–in particular self-defence–are doctrinally capable of accommodating the diverse situational and psychological circumstances of family violence victims.
7.32The Commissions concluded that any problems associated with the practical application of general defences should be addressed by improving the existing defences in the family violence context, through legislative clarification and guidance where necessary, and professional education and training for lawyers and the judiciary.
Submitters’ views on the options for substantive reformTop
7.33Most submitters preferred Option 1 over Options 2 or 3. Reasons included that it was the least risky option for reform and that it struck the right balance in addressing any risk of undue emphasis being placed on the concepts of imminence and proportionality, whilst leaving them as relevant factors to be considered by the courts.
7.34The Family Violence Death Review Committee (FVDRC), the Criminal Bar Association, the Public Defence Service and most members of the relevant committees of the New Zealand Law Society favoured Option 1. The FVDRC submitted that Option 1 should also include a requirement that the threat be assessed in the context of the victim’s ongoing relationship with a violent perpetrator, not just what was happening on any one occasion. Another submitter noted that section 48 is a clear, principled statement of the law and thus any reform should be carefully drafted as a clarification rather than an extension.
7.35Submitters were divided on whether Option 1 should apply generally or only where a defendant is responding to family violence. Reasons for limiting Option 1 to family violence included the distinctive features of intimate partner violence compared with other forms of interpersonal violence and the risk of unmeritorious arguments in respect of other forms of interpersonal violence. The New Zealand Law Society also noted that applying the proposed reform more widely would diminish the weight that should be given to victims of family violence in trying to change perceptions and understandings of the dynamics of family violence. However, committee members of the Law Society differed as to how Option 1 should be limited. Some considered it should be limited to victims of family violence, while others believed that fairness requires its availability to any defendant who is subjected to duress to a similar degree or of the same nature outside a familial relationship, for example, non-familial elder abuse.
7.36Those who submitted that Option 1 should have general effect included the Auckland District Law Society and the Criminal Bar Association, who cited the need to protect other equally vulnerable defendants. The Criminal Bar Association considered that the risk of it being used by defendants who, in the overall interests of justice, ought not be able to could be addressed by a requirement that the judge make a finding, on the basis of expert reports, that imminence and proportionality could be dispensed with. They said that, in effect, this would require the judge to determine that the defendant had been affected by a history of family violence. Several other submitters, including the Public Defence Service and the Auckland Crown Solicitor’s Office, noted the need for further research and consultation if Option 1 were to have general effect.
7.37Some submitters preferred Option 2. However, the FVDRC noted that the concept of inevitability in the hands of those who do not understand entrapment could actually raise the standards that primary victims are expected to meet if they are to successfully establish self-defence. One submitter was concerned that Option 2 could narrow the current statutory test of reasonableness and restrict its development, while another submitter was concerned it could be interpreted too widely. The Public Defence Service was also concerned that Option 2 carries the potential to blur the justificatory underpinnings of self-defence, noting that any amendment that sees section 48 becoming “excuse based” should be avoided.
7.38Submitters in favour of Option 3 included the Auckland Crown Solicitor’s Office, which considered Option 3 to be less nuanced and potentially problematic than the other options. The Auckland Coalition for the Safety of Women and Children also preferred Option 3, noting that different treatment is needed in this context because the circumstances in which victims of family violence kill are quite different from homicide committed in other contexts. The Public Defence Service considered, however, that self-defence can sufficiently accommodate the situational and psychological circumstances of family violence. One submitter preferred a separate defence that applies more broadly to victims of family violence who commit other offences when acting under coercion. Another submitter proposed a new defence drawing on elements from duress, necessity and self-defence.
The Commission’s views and recommendationsTop
7.39The Commission considers that Option 1, clarifying the operation of section 48 in a new provision in the Crimes Act, is the best mechanism for achieving the policy objective of reform, which is ensuring that self-defence properly accommodates the experiences of victims of family violence who commit homicide.
7.40Because Option 1 does not expressly introduce any new concepts, it has the advantage over Options 2 and 3 of minimising the risks of unintended consequences and of introducing complexities of interpretation that could result in a further body of case law. In relation to Option 2, while we agree that self-defence should not be excluded in circumstances where the danger is inevitable but not imminent, we consider the objective of this option, and of the Commission’s recommendation in the 2001 Report, can be achieved through Option 1 with a lower risk of adverse consequences. Given the problem arises not with the wording of section 48 but with the way in which the section has been applied, in our view, it is undesirable to amend section 48 itself.
7.41We also prefer Option 1 to Option 3 because, while Option 3 has the advantage of enabling the law to be drafted with the particular circumstances of victims of family violence in mind, we are concerned about the risk of perpetuating different, unequal treatment of this group of defendants. We agree with the Law Commissions of Australia, New South Wales, Victoria and Western Australia that, where possible, the application of existing homicide defences should be improved to ensure substantive equality in the law, rather than introducing new defences. We consider that self-defence can and should accommodate the diverse situational and psychological circumstances of family violence victims.
What should the proposed reform cover?
7.42In Chapter 6, we concluded that Wang remains authority for the need for an “imminent or immediate threat [with] no alternative available”. In relation to the concept of proportionality, however, we concluded that the law of self-defence is capable of accommodating the experiences of victims of family violence who use a level of force during an immediate confrontation that may not be strictly proportionate to the force used or threatened against them, especially when expert evidence is adduced. We are concerned, therefore, that clarifying the operation of section 48 in respect of proportionality would do little to change the substantive approach. We are also aware of the risk that such a clarification could invite confusion, and could risk a suggestion that unreasonable, “excessive” force could be considered legitimate self-defence.
7.43Where the issues of imminence and proportionality are interrelated (as they were in Wang), we consider that removing a requirement for imminence will necessarily require the jury to look beyond the immediate circumstances and undertake a broader contextual analysis of whether the use of force was reasonably proportionate, by reference not to the single preceding event but in anticipation of a future of repeated violence.
7.44We therefore recommend that the Crimes Act be amended only to overrule the requirement in Wang for an imminent threat. This would bring the interpretation and application of self-defence in the context of family violence in line with the comparable jurisdictions of Australia (at common law and in the statutory self-defence provisions of Victoria and Western Australia) and Canada. Under such a provision, imminence would remain a relevant consideration in the jury’s assessment of self-defence claims, as it remains so in Victoria and Western Australia. Self-defence would, however, in the words of the Supreme Court of Western Australia, “contemplate a person acting in respect of a harmful act which is not imminent”.
7.45We have considered the view of the Criminal Law Reform Committee, responsible for drafting what is now section 48, that the substantive provision on self-defence should not include a list of evidentiary guidelines for the courts, as that would be “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”. While we agree with that approach in principle, we are satisfied that the problems identified with the concept of imminence in the previous chapter, and the recent statements of approval of Wang by the Supreme Court in Vincent and the Court of Appeal in Afamasaga justify an exception to that approach to overrule Wang.
7.46We therefore recommend that the Crimes Act be amended to include a provision clarifying that section 48 may apply even where a person is responding to a threat that is not imminent. We do not make recommendations as to the precise wording of such a provision. This would be an appropriate task for the Parliamentary Counsel Office in conjunction with the Ministry of Justice. Such a provision must, however, be carefully drafted so that the threat need not be imminent in order for either the subjective or objective elements of self-defence to be satisfied, that is, a defendant may believe that the use of force was necessary and the use of force may be reasonable where a threat is not imminent. The provisions in Victoria and Western Australia may be useful examples, but we note that the tests for self-defence in those jurisdictions differ from section 48.
Should the proposed reform be limited to family violence?
7.47While the concept of imminence may also be problematic for defendants other than victims of family violence, given the limitations of our terms of reference and the time constraints on this project, we have not been able to consider properly the position of other defendants. Without this additional work, we are concerned about the risk of unintended consequences of recommending reform with general application. These risks are significantly higher than the risks identified in recommending an offence of strangulation with general application and, in our view, require a narrower approach. We are also persuaded of the merit in explicitly identifying the context of family violence in promoting changes in perceptions and improvements in understandings of the dynamics of family violence.
7.48For these reasons, we recommend that the proposed reform be limited to the context of family violence. We acknowledge that this cannot entirely exclude the risk of predominant aggressors or other “unmeritorious” defendants claiming that they acted in self-defence when they used force against an intimate partner or other family member. We think, however, the risk of such defendants establishing a probative evidentiary foundation for self-defence in these circumstances is low, given the continued requirement for objective reasonableness. We also note that, in such circumstances, the trial judge would be able to exercise his or her discretion and either:
- withhold the question of self-defence from the jury, if satisfied that no jury could entertain a reasonable doubt on the issue (discussed below at paragraphs [7.100]–[7.103]; or
- rule any evidence proposed to be adduced as irrelevant to the question of self-defence and inadmissible, pursuant to the general rules of admissibility in the Evidence Act 2006.
7.49Because the proposed reform is intended only to clarify the application of section 48 in the specific context of family violence, we do not consider there is a need for any further threshold or procedure for defendants seeking to rely on the proposed reform.
Defining family violence
7.50A further issue that is raised when limiting the proposed reform to family violence is what we mean by “family violence”. We discussed our use of this term in Chapter 2. The Crimes Act does not include a definition of family violence. The Domestic Violence Act 1995, however, defines domestic violence as “violence against that person by any other person with whom that person is, or has been, in a domestic relationship”. “Violence” encompasses physical, sexual and psychological abuse, including intimidation, harassment, threats and financial or economic abuse. A “domestic relationship” includes relationships between spouses, partners, family members, others who are ordinarily members of the same household and close personal friends. That definition is also used in the Evidence Act 2006.
7.51In Victoria, section 322J of the Crimes Act 1958 (Vic) defines family violence in relation to a person to include “violence against that person by a family member”. The definitions of “violence” and “family member” are similar to the definitions in the New Zealand Domestic Violence Act, although the definition of family member is inclusive rather than exhaustive.
7.52The FVDRC considers that the existing definition of domestic violence is problematic because it does not accord with contemporary understanding of family violence as a cumulative pattern of harm. It argues the existing definition supports an incident-based response to domestic violence rather than a consideration of each person’s role in the intimate relationship abuse history. The FVDRC also identifies that an unintended consequence of the current definition is that defensive behaviour by primary victims can be misconstrued as acts of perpetration.
7.53The Ministry of Justice is currently reviewing family violence legislation. Included within this review is a consideration of the legal definition of domestic violence. The Ministry has sought views on whether it is up to date and whether principles could more clearly guide how the law is implemented.
7.54The Commission considers it is appropriate that any definition of family violence for the purposes of the proposed reform be consistent with the definition of domestic violence in the Domestic Violence Act, incorporating any amendments that may be recommended by the Ministry of Justice as part of its current review. We note, however, that there may be merit in defining family violence in an inclusive rather than exhaustive fashion for the purposes of the proposed reform (by stating that family violence includes rather than has the same meaning as domestic violence in the Domestic Violence Act).
Should the proposed reform be limited to homicide?
7.55Finally, we have considered whether the proposed reform should be limited to homicide. Our reference is limited to victims of family violence who kill. However, self-defence is a general defence that can also be claimed in relation to offences such as attempted murder and assault.
7.56Limiting the proposed reform to murder and manslaughter would give rise to anomalies. A clear example would be a victim of family violence who is charged with attempted murder. This issue was identified by the VLRC when it recommended similar reforms limited to homicide in Victoria. The VLRC recommended serious consideration be given to their application to offences more generally. In 2013, the Victorian Department of Justice considered this issue and determined that the application of the VLRC’s recommendations should not depend simply upon whether a person dies or not as a result of the defendant’s conduct.
7.57On balance, we consider that the proposed reform should not be limited to murder or manslaughter charges. Unlike the issue of whether the proposed reform should be limited to family violence, where there clearly may be unintended consequences of general application, here, the risk of unintended consequences arises if we do not have general application in terms of the offence charged. Limiting the proposed reform to homicide would create anomalies in the law depending on whether the defendant’s use of force was lethal. We therefore recommend the proposed reform not be limited to homicide offences.
- R5 A new provision should be inserted into the Crimes Act 1961 to ensure that, where a person is responding to family violence, section 48 may apply even if that person is responding to a threat that is not imminent.
- R6 The Ministry of Justice should consider whether the term “family violence” should be consistent with the definition of domestic violence in the Domestic Violence Act 1995, incorporating any amendments that may be made following the Ministry of Justice’s current review of domestic violence legislation, or whether an inclusive definition of family violence is preferred, including, but not limited to, the definition of domestic violence in the Domestic Violence Act 1995.