Reasonable use of force

South Auckland liquor store owner Virender Singh (right) with his lawyer Greg King after JPs dismissed Singh's assault charges. Photo / Greg Bowker

A shop owner is confronted by several assailants.

There's been a history in the area of people being assaulted with weapons, sometimes with fatal outcomes.

He uses a hockey stick to defend himself. How come he ends up in court? That's the question many are asking following the Virender Singh case.

Of all the recent cause celebres for the right to self-defence - Greg Carvell, David Allen, "Officer A" and Virender Singh - only David Allen convinced a jury.

The others were thrown out by the courts before they got to that stage. Officer A's case was investigated by the Independent Police Conduct Authority.

But all tell us something about our right to "stand fast" in the face of a perceived threat. In Officer A's case it involved the shooting of a person advancing with a hammer.

In Dave Allen's, the shooting occurred when a man had come on to his property and threatened him. Greg Carvell shot a man who came into his gun shop wielding a machete. Virender Singh used a hockey stick against youths attempting to rob his liquor store.

The underlying theory at work here is known as stand fast - "that other people aren't allowed to invade your space or invade your body and you are able to protect your space and body so far as is reasonable", says Auckland University Law school lecturer Khylee Quince.

What that means is that under our law, in particular Section 48 of the Crimes Act, if someone really believes there is a threat, even if it is a mistaken belief, then it's reasonable for them to take action to defend themselves.

"Our Section 48 is trying to allow for people to stand fast and hold their ground, but also to put some limit on the amount of force they are allowed to use in their own defence," says Quince.

The underlying principle in deciding what is reasonable is "that you are not allowed to use a sledgehammer to crack a nut," she says.

Or, as Queen's Counsel Paul Davison puts it: "If someone is hitting you with a feather duster, you can't shoot them with a gun."

In other words, you're entitled to defend yourself in way that's necessary to meet and subdue the force that's attacking you or others, which may involve immobilising or killing the assailant.

"It's an evaluation of reasonableness in the circumstance," says Davison.

Sounds reasonable.

But why, then, has Justice Minister Simon Power asked his officials how the self-defence laws are being applied "in terms of how police exercise their discretion to charge"?

Why, if the courts have no trouble throwing out cases like Singh's at the deposition stage, do the police have so much trouble figuring out what seems self-evident to everyone else? If it's not okay to use a hockey stick to defend yourself when you've been stabbed, how bad does it have to get?

"I think what is happening here is because of the extreme public scrutiny the police seem to be under on all controversial cases they encounter, they tend to kick for touch," says Davison.

"They tend to play safe and go for the option of letting the court decide and therefore the court being responsible for a decision."

The situation has led to groups like the Sensible Sentencing Trust and former MP Stephen Franks calling for self-defence law reform.

Franks has, for a long time, advocated changes to the Arms Act and believes "our ancient rights to defend ourselves" were muddled by 1980s changes to the Crimes Act which removed the defence of provocation.

"I don't agree there's a need for any wholesale change," says Davison.

"If anything needs to be changed, it's in what might encourage the police to take a more self-reliant attitude and responsibility for their own decisions."

He says in previous times police were more confident that their own judgment was reflective of "the principle and perhaps public opinion on matters like this." It's a confidence he thinks has been undermined by the police coming under a much more intense public scrutiny.

The one area where Davison does believe the law might be reviewed is in compensation.

"If someone took legitimate steps to defend himself/herself or someone else, there would be an enormous sense of injustice in finding oneself prosecuted," says Davison, pointing out the person and their family would carry a huge burden while the prosecution process is played out.

"It can't be compensated for in one sense, because that trouble and worry is beyond financial compensation." But Davison says perhaps, if a decision is made that is clearly wrong, consideration should be given to legislation to provide the court with power to order payments based on actual costs incurred.

"One of the advantages of something like that would be that it becomes a natural constraint on the police in proceeding with a prosecution because they are going to have to back themselves in being right and face the consequence of being wrong."

Davison says our self-defence laws are structured on the basis that people acting in self-defence make a rapid decision.

"Suppose someone is coming at you in a way that makes you fear for your life, do you grab for the kitchen knife or something else? You use what is reasonable and maybe you do have recourse to a fatal weapon."

As to the question of knowing how far one can go, Davison says the natural instincts of people are a very good guide. "The natural instincts to avoid injury and prevent a re-occurrence of it are to take certain steps - well, that's probably right."

Where the line is drawn says Davison is that once people have managed to prevent the assault that they don't go on further and inflict unnecessary injuries or "a series of punishing blows" on the assailant. "The purpose of self-defence is to thwart the attack."

Quince says despite the public outcry over recent cases like Singh's she thinks the Crown and Police will continue to err on the side of caution and test the decision to use self-defence in most instances. "I think that is a good thing," she says.

"You don't want unbridled vigilantism." But she says the difficulty is in the delicate balance between indicating to people they are allowed to defend themselves, but not exactly telling them how, when, with what and in which circumstances they can act.

Quince says the ideal outcome of testing self-defence cases in public is that we should then get a clear signal as to what sort of weapons people are allowed to use against what number of offenders.

She doesn't see any precedents being set, in what has happened in the cases thrown out at deposition stage, but thinks what might have occurred is a change in a public perception which "could filter down to a jury decision."

Quince says what was significant in the Allen case, where the intruder who was shot came to his remote Eastern Bay of Plenty property, was how the law enacts the idea of "your home being your castle".

While it wasn't argued in the Singh case, it's a possible extra argument for shop owners - that while the location is technically a business, it's also a place where they spend a lot of time and their livelihood.

What comes into play when someone invades a home is Section 52 of the Crimes Act covering the right to defend property, a second strand of justification for self-defence.

Opponents of self-defence reform say our existing laws work well and are concerned changes could lead to people owning a gun to defend themselves becoming the norm.

"What we don't want is an Americanisation of our laws that encourages people to arm themselves and take the law into their own hands by shooting first and asking questions afterwards," said then Justice Minister, Phil Goff, in late 2004, arguing against Franks.

Goff also pointed out: "In a heavily armed society like the US, the homicide rate and robbery rate are four times higher per head of population than in New Zealand."

But given concerns about attacks on shopkeepers, is it legitimate for them to keep a gun under the counter, as was the case with Carvell, to defend themselves?

Davison points out it's not lawful to keep firearms under a shop counter - as their use is controlled by the Arms Act and they must be kept in a locked cabinet.

But he does agree people who are at risk because of their occupation are entitled to take steps to ensure that if someone confronts them, they are able to use reasonable means to defend themselves.

"What that is, is a pretty open question. One can hardly say that the use of a stick in circumstances where people are being confronted with knives or worse is an indication of a predisposition to greater violence than reasonable force requires."

Davison points out society as a whole is trying to avoid citizens arming themselves because we work on the basis that the police are our armed representatives who can resist those sorts of forces.

He points to recent examples of citizens - such as Austin Hemmings - going to the assistance of people and being killed.

"Clearly in our community plenty of people are prepared to step forward and help one another. But I think it's fair to say given the high levels of violence and the prevalence of the carriage of weapons, particularly knives, some citizens have good reason to hesitate before assisting others."

Davison acknowledges there are no easy answers. "It's a combination of policing and community response. I don't think we can say as a community we are no longer as caring for each other, but in the modern age it's a dangerous world out there."

THE LAW

The key document Police and Crown prosecutors adhere to when deciding whether or not to prosecute are the "Prosecution Guidelines" written by the Crown Law Office in 1992.

A prosecutor must first determine if there is a prima facie case. If there is, the prosecutor must then consider the public interest in pursuing the prosecution.

The first issue is the "sufficiency of evidence" - whether there is reliable evidence an offence has been committed by an identifiable person.

The second issue is the public interest of the decision to prosecute or not prosecute. The dominant factor here is "that ordinarily the public interest would not require a prosecution to proceed unless it's more likely than not that it will result in a conviction". In cases of doubt, the guidelines say the final arbiter should be the Court.

The guidelines also give a long list of other factors that may be considered in deciding whether or not to prosecute.

They include: all mitigating or aggravating circumstances; the effect of the decision not to prosecute on public opinion; whether the prosecution might be counter-productive - for example by enabling the accused to be seen as a martyr; whether the consequences of any resulting conviction would be unduly harsh and oppressive; the degree of culpability of the alleged offender; and the prevalence of the alleged offence and the need for deterrence; and the likely length and expense of the trial.