Understanding the law on self-defence

JAY LOVELY
Last updated 07:43 29/01/2014
self defence

IS IT REASONABLE? How far you go in defending yourself or someone else depends on a range of factors.

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Recently the law of self- defence has come into the news, where a woman in the North Island was attacked in front of some other people.

No one got involved to help her, despite her requests to them.

It raised the issue about what is the legal position when you are seeing someone attacked. Can you get involved?

Firstly, the law allows you, in certain situations, and up to a point, to assist in the defence of another.

The relevant section of the Crimes Act is the self-defence section which, when read says "Everyone is justified in using, in the defence of himself or another, such force as in the circumstances that he believes them to be, is reasonable to use".

So what does this mean, practically? The court has interpreted this section to mean that it applies (or doesn't apply) when three questions are answered.

1. Did someone use force to defend him or herself, or another?

2. What did the person who did the defending believe the circumstances he (or she) got involved in, to be?

3. Was the force that the defender used reasonable in all the circumstances?

I take those questions to mean did someone act defensively and did they stop at an appropriate time?

Things like picking up a weapon and using it to defend someone would generally mean the forced use is not reasonable. Using a weapon can also lead to a charge of possessing it in the first place - where self-defence cannot apply.

A court has to look at what someone's individual thought pattern was at the relevant time and whether that thought pattern was reasonable in the court's opinion.

For instance, even if someone feels justified to pick up a shotgun or an axe to defend someone who is being shoved, a court will find that simply is not reasonable.

Self-defence and defending someone else has a defence to a charge, if laid, fails if the force used is excessive.

It must also be in response to an attack - it cannot be pre-emptive in nature.

So the perception that you will be convicted of a crime for helping someone just is not right, but it has to be helping someone - you cannot become part of the problem.

You also have the ability to defend your property, which is movable property, but the legislation specifically precludes the use of striking and/or bodily harm.

What happened to the woman in the North Island was awful, but if someone in the future does not help someone, because they are scared of the court process, then that is also pretty awful I think.

Footnote: This article is not legal advice. If you need legal advice on this matter, contact your lawyer. Jay Lovely is a senior solicitor at RSM Law.

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- The Timaru Herald

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