Compulsion and Self-Defence
![handle is hein.journals/vuwlr20 and id is 267 raw text is: Compulsion and self-defence
Warren Brookbanks*
I INTRODUCTION
Two statutory defences which have attracted greater judicial and academic interest in
recent years are compulsion1 and self-defence.2 Together they provide legal protection to
persons who use force to protect themselves or others from actual or perceived physical
attacks and to those who commit offences while subject to overwhelming threats. The
ethical basis for each defence is that the powerful human instinct of self-preservation
should, within reasonable limits, justify conduct that would otherwise be criminal.3
However, although each defence is grounded in the motive of fear only the person who
acts in self-defence is protected both against criminal conviction and civil liability. The
person subject to compulsion is protected only from criminal responsibility.
The reasons for this distinction are rooted in the Common Law of crimes. But
generally, it is argued, a person who commits an offence while subject to overwhelming
threats ought, as a concession to human frailty, to be excused because punishment in
such a case is pointless.4 Any normal person similarly placed would probably have
done the same thing. A person who acts in legitimate self-defence, however, is deemed
to be acting within the law provided he uses no more force than is reasonable in the
circumstances. In repelling an unlawful attack he will be regarded at law as not having
committed any offence, even if in the event he kills or injures his assailant. In effect,
the law applauds his conduct.
As will appear, self-defence as currently defined is a broad-based justification which
allows a fair degree of latitude to persons who respond to aggression with force.
* Lecturer in Law, University of Auckland.
1 See Crimes Act 1961 s 24. The statutory defence is substantively amended in c1 31 of the
Crimes Bill, as to which see discussion in Part II below.
2 See Crimes Act 1961 s 48. The provision is unamended in cl 41 Crimes Bill.
3 Both defences are closely related to necessity in the sense that the accused's conduct is
excused on the ground that the harm he inflicted was necessary to preserve his interests.
In self-defence the defender injures the creator of the evil situation; in compulsion he may
harm a person who was in no way responsible for the imminent danger. For a fuller
discussion of the relationship to necessity see Hall, General Principles of Criminal Law (2
ed (1960)), 425-435; Brookbanks, The Defence of Compulsion - an Overview (Legal
Research Foundation no 20, 1981) 7-12, 25-27.
4 Compare [the] residual defence of necessity ... rests on a realistic assessment of human
weakness, recognising that a liberal and humane criminal law cannot hold people to the
strict obedience of laws in emergency situations where normal human instincts, whether
of self-preservation or of altruism, overwhelmingly impel disobedience. Perka v The
Queen (1984) 14 CCC (3d) 385, 398, per Dickson J. But as to whether conduct in
situations of self-preservation is inexorably fixed for all human beings, see Hall, above n
3, 445-6.](ViewImageLocal?handle=hein.journals/vuwlr20&div=22&collection=&method=preview&ext=.png&size=3)
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Compulsion and Self-Defence
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