The Right to Self Defence

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10535698



The key issue here is hesitation. If we posit a binary solution set:
1 - We do not apply sufficient force, the attacker is capable of retaliation, the victim is further injured, or;
2 - We apply too much force, the attacked is incapacitated,
we can see that logic favours applying too much force. We, as the self-defender, cannot be sure how much is sufficient. We do not know the abilities of our opponent. We do not know whether he is hopped up on drugs. Usually, we have no ability to RESTRAIN him, but rather must use force in a way that incapacitates (of course it'd be unreasonable to use force if we had handcuffs or something, i'm not advocating a free for all)

The final issue - I'm sure someone will bring it up - is what do we do if the assailant begins to flee? Well, that raises 2 more issues
- will the assailant return with allies before the police arrives?
- will the police be able to track the assailant if he gets away?
Again, both of these issues suggest the use of additional force.

are you trying to make the case for why we should stick with the test of reasonableness for self defence despite Vicar's criticism that it's too vague?

the way I see it, the factors that you have set out do not support excessive force, or if they do, your argument is easily defeated by the risk of serious injury or death in circumstances where such was neither necessary nor warranted. self defence is not a license to kill - it cannot be that. arguably excessive force is not self defence at all, it's self defence combined with gratuitous violence and why should we permit gratutious violence? just because it may have had it's origins in self defence?

rather the factors you have set out are better utilized as measurements of reasonableness ie if the assailant was fleeing was it reasonable to shoot him in the back or if the assailant appeared to be on drugs was it reasonable to assault him with a weapon as opposed to the fist etc etc...in my view, 'reasonableness' should be as vague as possible (not that it is *that* vague, there are clear and established principles we use to measure it and many of the factors you have set out would be included in that equation) but it should most certainly be flexible in order to accommodate the variety of scenarios in which self defence arises.

As I've posited before, the risk of serious injury or death has to be weighted against the risk of the same to the initial victim, and the risk of the law being breached and going unpunished.

However, I'm not justifying large quantities of violence at all... sometimes, however, one doesn't have that choice!

BG,

Say the amount of force needed to prevent the attacker injuring me is 5 units of force.

However, say that I can only apply either 0 or 10 units - there isn't always a nice incremental increase possible.

if I apply 0, then I die; if I apply 10, I am using excessive force.

I believe that's a pretty logical argument.

'gratuitous violence' we permit in the same way that women are allowed defend herself if raped or attacked by a man etc ..

well..what are those principles? its seems like you are overcomplicating the issue ...its a common trait when someone does not understand the situation..

having just walked out of a self-defence hearing today .. I can say I have turned my thoughts to this issue lately.

the law allows the use of reasonable force in the circumstances as the defendant subjectively believes them to be.

reasonable force does nOT require a balanced response. it's simply what is reasonable in all the circumstances. for example, if I am attacked in a forest and my attacker is only using his fists, I could pick up a branch off teh ground and fend him off - even if I cause injuries with that branch that exceed those that I suffered. my response is not weighed to a nicety and the law allows considerable leeway.

it would not be reasonable however to go beyond self-defence and use the branch with excessive force or ferocity, in an outright attack, beyond the needs of defence.

JH

That's what I'm saying
What matters is the intent - defence - rather than the quantity of force used.

Using one's fists to ATTACK in a punitive fashion is worse than using a shotgun in a defensive fashion

the guy in the gun shop and the farmer up north, both using guns, got acquitted of the charges did they not?

that's right - and that principle is reflected in the law as it stands.

self-defence can be an answer to a charge of murder. for example, if someone attacked me in an apartment, and I pushed them away to fall through a window, and they fell to their death on the street below.

But the quantity of the force does matter. It’s not determinative but it is relevant. By way of example if you intentionally step on my foot I cannot shoot you in response. There has to be a level of proportionality.

JH you are right, circumstances are judged subjectively, however the force used must be reasonable in those circumstances – which is an objective standard and as you probably know involves consideration of necessity, proportionality, imminence of threat, and opportunity to retreat.

Excessive force – as it is colloquially understood – could indeed found a successful defence of self defence, and the example you have make about an attack in the forest is one of excessive force which could comfortably fit within a self defence scenario. But excessive force as understood legally would never amount to self defence because by definition such force is ‘unreasonable’ and therefore unlawful.

As for you kalel, I don’t really understand what you‘re trying to say nor do I see how my comments overcomplicated the matter, the principles (necessity, proportionality, imminence of threat and retreat) are basic principles which I wanted to avoid restating; perhaps you are the one lacking in understanding.

Yes, but if x - the level of force likely to be used by the assailant - is an unknown, the only safe measure for the defender is to use maximum force.

proportionality is a consideration in self-defence, but it is frequently misunderstood as requiring a balanced or matched level of force, and method of applying force. I was attempting to highlight that distinction.

thus, I am not automatically disqualified from arguing self-defence if I pick something up to use as a weapon, and my attacker is not using a weapon. provided that I only use it to fend him off i.e. for defence.

your example is correct though - I could not shoot someone if they had only stood on my foot - that is disproportionate and excessive force.

not necessarily eg if your assailant is unarmed, smaller, weaker, younger etc than you - then you would not be justified in using "maximum" force (whatever that means), especially if it involved using a weapon

the example you use when someone stands on your foot , an exception is the nature of the situation to justify reasonable force , but the exception involves more detail info..? lets say I shoot the guy/gal who stood on my foot at the time , I was barefoot and the attacker had steel capped boots on . the attacker has had a history of standing on ppls feet among others things that have lead to serious assault, well aware that the foot stomper is dangerous I shoot him ( assuming u are permitted to carry a gun ) in the face because he would not stop standing on my now bloody feet ... necessity is based on survival i.e that there is no telling what the stomper could do next, ( given his overwhelming size and aggression ) in this case proportionality as in my reaction (use of a gun) reduces the imminence of threat because the footstomer has violently assualted ppl before , and has spent time in prison for it . I don't agree your notion of excessive force because there is always that spur of the moment which can be out of ones control or a knee jerk reaction . saying that your average person like a storeowner or even someone about to be raped in all practicallity does not have time to decide what is reasonable and what is not .....unless of course that person is a trained martial artist or a navy seal etc .....in terms of a legal definition would this scenerio of excessive force still seem unreasonable ..? disprotionate ...? plz note : unfortunately for victims of attack a tactic is ...if you want to hit someone in the face , you stand on their foot so they can't move.

if he had a confidence in the police he would not have had to resort to self-defence ..especially in such a high risk area as otara ..

interesting that...its not a racecard cause I don't think luck has much to do with the basic facts but in this case of all places like otara, why would the police want to send a clear msg to the public ...? and in someways deny the rights of others to protect their themselves and family....?