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Self-defense laws in New Zealand: What is reasonable force?

Key Takeaway

New Zealand law permits individuals to use reasonable force to defend themselves or others from harm. The assessment of 'reasonable force' considers the specific circumstances as the person genuinely believed them to be and whether the response was proportionate. This justification is primarily set out in the Crimes Act 1961.

Self-Defence Laws in New Zealand: What is Reasonable Force?

In New Zealand, the law acknowledges the right of individuals to defend themselves and others from harm. This right is primarily governed by the Crimes Act 1961, which outlines the circumstances under which the use of force can be justified.

What is Self-Defence?

Self-defence, in legal terms, is a justification for using force against another person that would otherwise constitute an offence, such as assault. It applies when an individual uses force to protect themselves or another person from an attack or apprehended attack [Source: Crimes Act 1961, s 48].

The law states that "Everyone is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use" [Source: Crimes Act 1961, s 48].

Key elements of this provision include:

  • Defence of self or another: The force must be used to protect the individual themselves or another person.
  • Circumstances as believed: The assessment of the situation takes into account what the person genuinely believed the circumstances to be at the time, even if that belief later turns out to be mistaken.
  • Reasonable force: The amount and type of force used must be considered 'reasonable' in those believed circumstances.

The Concept of "Reasonable Force"

While the Crimes Act 1961 states that force used must be "reasonable," it does not provide a precise definition of what constitutes reasonable force. Instead, reasonableness is determined by considering all the specific facts and circumstances of each individual case. Courts will typically evaluate two main aspects:

  1. Subjective Belief: What the person genuinely believed the threat and circumstances to be at the time of using force. This acknowledges that people react differently under stress and that their perception of a threat may not always align perfectly with objective reality.
  2. Objective Reasonableness: Whether the force used was objectively reasonable given those believed circumstances. This means assessing if the response was proportionate to the perceived threat, considering factors such as:
    • The nature and severity of the attack or apprehended attack.
    • The imminence of the danger.
    • The availability of alternative actions (e.g., retreating, calling for help).
    • The physical capabilities of the individuals involved.
    • Whether the force was necessary to avert the danger.

It is important to note that the law does not require individuals to measure force with precision in the heat of the moment, but the response must not be excessive or disproportionate to the threat faced.

Use of Force Causing Death or Grievous Bodily Harm

There is a specific provision for situations involving severe threats. A person is justified in using defensive force that may cause death or grievous bodily harm (meaning very serious harm) if they are under a reasonable apprehension (fear) of death or grievous bodily harm from the person against whom the force is used [Source: Crimes Act 1961, s 49(1)]. This means that the level of force, even lethal force, can be justified in extreme circumstances where the defender reasonably believes their life or severe bodily integrity is at stake.

Defence of Property

While distinct from self-defence, the Crimes Act 1961 also includes provisions for the defence of property. Sections 52 to 56 justify the use of reasonable force to prevent trespass, remove trespassers, or defend property from theft or damage [Source: Crimes Act 1961, s 52-56]. However, these sections generally prohibit the intentional causing of death or grievous bodily harm in the defence of property alone [Source: Crimes Act 1961, s 52-56]. The force permissible for property defence is typically less than for self-defence of a person.

Burden of Proof

If the issue of self-defence is raised in a criminal proceeding, the prosecution bears the burden of proving beyond reasonable doubt that the defendant did not act in self-defence [Source: Evidence Act 2006, s 27]. This means the prosecution must satisfy the court that the force used was not reasonable in the circumstances as the defendant believed them to be.

When to Seek Independent Legal Advice

Anyone involved in a situation requiring the use of force, or facing charges related to such an event, should seek independent legal advice immediately. Understanding the nuances of self-defence requires expert interpretation of the specific facts and how they apply to the law. Community Law Centres across New Zealand offer free legal assistance and can provide initial guidance. Individuals can contact a Community Law Centre for help [https://communitylaw.org.nz/].

Key Resources