Editorial: Police need to waive charges in clear cases of self-defence

It is not hard to understand why police decided to charge Virender Singh. In the Manukau District Court this week, the Otara liquor store owner stood accused of injuring with intent two teenagers who were trying to rob his shop. Singh, who sustained a stab wound during a furious fracas on the footpath in which he deployed a hockey stick, denied the charges on the grounds that he had acted in self-defence.

After a three-day hearing, Justices of the Peace Mark Sinclair and Brian Cullen dismissed the charges: there was, they said, insufficient evidence to commit Singh for trial.

Singh was understandably elated but he and his wife, Gagandeep Kaur, were flabbergasted that the charges had even been laid. "I'm a good citizen," he told the New Zealand Herald. "I've been here 22 years, living locally and never broken any law."

It is safe to say that a very significant majority of New Zealanders shared his outrage. In an informal online poll, 96 per cent of respondents thought the JPs' decision was right.

But the tone of letter-writers and talkback callers has tended towards the hostile, suggesting that the police decision was not just wrong but wrong-headed. Typical was one comment that Singh should be able to sue the police for malicious prosecution.

It is important to remember that Singh was not acquitted. Rather, the charges were dismissed, which is to say it is as if they had never been brought. Singh was not on trial; a hearing was held to determine whether he should be on trial and it was decided that he should not.

It is a sign of the times that so many people feel the police should never have referred the matter to the judicial system, but exercised their discretion and dropped the matter. Assaults on shopkeepers - notably those who run dairies and liquor stores - have become depressingly common in recent years, particularly in the part of Auckland where these events unfolded. The prevailing view, which is that Singh gave a pair of ruffians what they deserved, reflects a mood of deep disquiet. The fact that the businesses targeted are frequently those of people from South Asia sharpens the sense of grievance, since they are typically hardworking and law-abiding, contributing much to the economy and requiring little in the way of social welfare support. They feel entitled to police protection and aggrieved when they feel that it is not forthcoming or, worse, that the police are punishing the victims rather than the perpetrators of crime.

The police have played the public criticism with a straight bat, saying that the decision to prosecute was not made lightly, but on the basis of "the best evidence acquired". They would have been mindful that not prosecuting was a course of action with its own perils: it would have exposed them to accusations that they were acting as judge and jury, or ignoring vigilante violence.

But if they feel that they lack the room to exercise their discretion it is a matter that warrants close inspection. Mr Singh's lawyer, Greg King, who is to be commended for acting without fee in an important case, has suggested that an amendment to legislation could explicitly allow such discretion in self-defence cases. Such a provision exists and has plainly been useful in "inconsequential" cases that have been considered under the so-called "anti-smacking" law.

Justice Minister Simon Power has asked departmental officials to examine the questions raised by the Singh case. He wants to know how police are exercising their discretion not to lay charges, and how often courts deal with self-defence cases.

If that presages an amendment to legislation, so much the better. It would be wrong to infer that the dismissal of charges against Singh gives licence to vigilante action. But it is important that law-abiding citizens are not unduly harassed for exercising the right to defend themselves, in particular when a hard-pressed police force is failing to offer them the protection they deserve.