What is reasonable force when protecting your own property or self, which will not result in the shop proprietor being charged with assaulting the offender?
The Crimes Act says that a person can use reasonable force (i.e. what that person believes is reasonable to use), in defence of himself or herself, another person, or their property.
The starting point for any consideration of force used on a visitor entering premises is, “What are the circumstances as you believe them to be?”
The law justifies action used to protect yourself or another person in a reasonable way that is proportionate to the threat you think you are under.
For example, if a 10-year-old child entered a premises with a pop gun, a proportionate response would be to tell the child to go out and come back when he can behave properly.
It is an entirely different set of circumstances if two or three masked people enter.
In that case, if force is used in self-defence, the first thing the court will consider is “What are the circumstances of the threat you think you were under at that point?” The force used to repel that situation will be gauged on the answer to that question, and the force used has to be reasonable.
Even a misguided person coming into the premises does not lose their rights because they have done wrong.
The paramount question is “Was the action of repelling the person proportionate to the threat you thought you were under at the time?”
For specific advice, it is necessary to consult a lawyer.
Are rape and assault victims required to give evidence in court in full view of the offender?
No, they are not always required to give evidence in full view of the offender.
There are a number of ways people can give evidence in court and it is up to the Judge to decide how that will happen.
The rules are set out in the ‘Evidence Act’ and Judges must follow the law.
Issues to consider
In deciding how a person gives evidence in any case, but particularly in rape and assault cases, there are a number of things the Judge will consider.
These include the age of the witness, the circumstances of what is said to have happened, the potential effect on the witness of giving evidence in open court, and a number of other considerations set out in the law.
The court may also have evidence from family members or a psychologist, or police officer, all of which will be taken into account before deciding the method by which a person should give evidence.
Three of the most usual ways are in court from the witness box in full view of the accused person.
Another way is still in the court, in the witness box, but with a screen in the courtroom so the witness cannot see the accused person but placed so the Judge and jury if there is one, can see the witness.
The third method, often used for children, is via CCTV, where the witness sits in another room in the court building in front of a camera with a display in the courtroom where the witness can be seen on a screen.
Every witness who comes to court for any matter, not just assault or rape, is able to have a support person with them who will not take part in the proceedings, but will sit near the person when they are giving evidence.
The above is the response given by the judges of the Auckland District Court at their ‘Community Day’ held at Fickling Convention Centre on September 24, 2012. The Editor of this newspaper was present at the meeting and the responses of the judges to a number of questions are published in a series. The responses are reproduced verbatim, as given by the judges. The first and second parts appeared in our November 15 and December 1, 2012 issues.