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Court of Appeal clarifies the boundaries of self-defence, reasonable force and the culpability of youth offenders

11 Aug 2023

| Author: Fiona Wu

Appeal against conviction and sentence – murder – self-defence – directions given by trial judge – tripartite direction – relevance of youth in sentence – life imprisonment – Dickey v R [2023] NZCA 2 – minimum period of imprisonment

M v R [2023] NZCA 319.

 

Fourteen-year-old M killed Bram Williams, 22, by repeatedly stabbing him. M’s defence was that he acted in self-defence and did not have murderous intent. He was found guilty of murder following a jury trial and sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 10 years. M appealed his conviction and sentence.

M’s conviction appeal concerned the judge’s directions on self-defence. Specifically, he argued the judge erred in contrasting self-defence with acting in anger; wrongly tied his directions on what amounted to reasonable force to “community standards”; failed to give a tripartite direction in respect of M’s evidence (and, to some extent, the evidence of other witnesses); and failed to give an intoxication direction specifically in relation to self-defence.

None of the appeal grounds was made out. Following a request by trial counsel, the trial judge clarified that acting in anger did not preclude self-defence and correctly directed the jury it was possible for M to have acted in self-defence and in an aggressive manner.

The second ground of appeal concerned the trial judge’s direction that what was reasonable force was for the jury to decide as the representatives of the community. He addressed the jury as people “representing community standards”.

The Court of Appeal found the point the judge was making was that, unlike the first two questions for self-defence, which were subjective, the third question was objective – it was not what M thought was reasonable force, but rather for the jury to decide whether the force was reasonable. There was no error by the trial judge.

M, and two other witnesses (S and C), gave evidence. The nature of the evidence was such that, even if the jury accepted the account of one or more of the witnesses, it remained open to them to find that M used excessive force to protect himself or others. A tripartite direction – a direction that the jury must reject M, S and C’s evidence before finding M guilty – was not necessary in this case.

The final ground concerned M’s youth and intoxication at the time of the offending. The defence called expert evidence from a psychiatrist who testified that the adolescent brain is prone to overreaction, an effect that is heightened with alcohol.

On appeal, M argued the judge should have referred to M’s intoxication as being “relevant to the circumstances as M understood them to be” when considering self-defence. The Court of Appeal found this was not necessary: the judge gave an intoxication direction and the point would have been understood by the jury.

Separately, M appealed his sentence. The trial judge found that youth itself was not a sufficient reason to make life imprisonment manifestly unjust. Therefore, the presumption of life imprisonment for murder was not displaced.

Since M’s sentencing, the Court of appeal issued its decision in Dickey v R, which upheld a more flexible approach to applying in presumption. The effect of Dickey, amongst other things, was that it is no longer correct to say that youth carried little weight when balanced against other interests.

Mallon J, who gave the court’s reasons, said M’s young age significantly reduced his culpability. He had a high capacity to rehabilitate, demonstrated remorse, and had no personal aggravating factors. The combination of these circumstances meant life imprisonment would be manifestly unjust.

 

Applicable principles: when absence of tripartite direction will lead to miscarriage of justice – whether trial judge erred in directions to jury – reasonable force and community standards – when youth renders sentence of life imprisonment manifestly unjust.

 

Held: appeal against conviction dismissed, appeal against sentence allowed.

Sentence of life imprisonment substituted with sentence of 13 years’ imprisonment with an MPI of five years, two months.

 

M v R [2023] NZCA 319

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