Taekwon-Do and the Law of Self Defence

"Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use."
Crimes Act 1961, section 48.

At the Auckland Regional Camp in June I found myself discussing the law of self defence with a few fellow students. I was surprised to discover how diverse and inaccurate their understanding of our law was.

Criminal law was one of the subjects I had to study at Law School and I wrote an essay on this subject for my 2nd dan in 1994. I decided to put an article together and run it past a few people in the field to give our students a brief but accurate understanding of how their study of Taekwon-Do fits in with the law of self defence in New Zealand. In this article, I will:

• dispel a number of urban myths about self defence;
• outline how legal defences work;
• explain the law of defence of yourself or another person; and
• compare the law of defence of property.

Urban myths

There are a number of rumours about self defence and the law. The following points dispel a few of the most inaccurate ones.

Martial art black belts do not have to register themselves as deadly weapons.
There is no police register of black belts or martial artists. Your mugshot will not appear on the Wanganui computer with "Taekwon-Do black belt" next to it.

If you are attacked, you do not have to warn your attacker that you do a martial art.
The fact that your attacker does not know that you do a martial art is one of the most powerful tools of self defence that you have. Do not throw it away by informing your attacker that they need to be careful when they attack you!

There is no requirement to retreat before you use physical force. Further, you can attack first if the situation is serious enough.
Physical force should be avoided if possible. However, you should not retreat or wait until your attacker uses force if to do so would put you in serious danger. If it is necessary, get them before they can get you.

Legal defences

As a result of using Taekwon-Do to defend yourself (or someone else), you may find yourself in court. You might be taken to court by the police, or another citizen if you have harmed their property.

If this occurs, the police or citizen must first prove that you have done the act that they allege. If they succeed, you must prove that you did it while you were defending yourself or another person within your legal rights. Your legal rights are outlined in the next section.

What this means is that you may go to court. However, remember two things: (1) you are better off in court than in hospital; and (2) if you are not excessive in your use of force you will have done nothing wrong and you will not be found guilty or liable.

Self defence and defence of another

The law of self defence appears in section 48 of the Crimes Act 1961. It is quoted at the top of this article. It relates to defending yourself or another person. You do not need to know the person you are defending - so you can be a "champion of freedom and justice" if the situation arises.

The wording of the law contains two very clear elements. There is the defender's belief in circumstances (a subjective element) and reasonable force (an objective element).

The subjective element means the judge bases a decision on what you thought was happening - even if you misunderstood the circumstances. However, you must convince the judge of your honest belief at the time. For example, you are approached by two large men on a Saturday night in town. They look menacing and you think they are going to mug you. You throw the bottle you are holding at the closest man, knock a nearby rubbish bin down between you and run for it. The judge considers the circumstances based on what you thought. The actual circumstances (perhaps they only wanted to borrow a lighter) are not relevant.

The objective element means the judge decides what is reasonable force in those circumstances. In the above scenario, you might argue that it would be reasonable to attack both men, knocking them unconscious and breaking a few of their limbs. What you think is reasonable is not relevant - it is the decision of the judge. In addition, if the judge decides you have used too much force, you are tried on the full amount of force, not just the excess. The word "justified" means that this defence can be used against any legal action - whether brought by the police or another citizen. For example, self defence might be applicable against a police charge of careless driving or wilful damage. In addition, if you damaged property in a shop while defending yourself, you can plead self defence if you are sued by the shop owner.

Defence of property

The various defences that allow us to protect our property are much weaker than defence of people. In many cases, if you plead defence of a thing, the judge decides both the actual circumstances and reasonable force. The defender's interpretation of the circumstances is not relevant.

This distinction is very important. For example, if you find someone breaking into your home, you may use less force to protect the building and its contents than you can to protect yourself and your family. Ironically, if you find someone breaking into your home, there is likely to be a very real risk to you. Always raise this with the police as more important than your fear for your property.

Another example is defending yourself against someone who tells you to give them your wallet. If you say, "I wanted to stop him from taking my wallet," you are defending your property. It is stronger to say, "I was not going to give him my wallet, but he looked menacing and I thought if I didn't defend myself, he would try to seriously hurt me." This turns the same confrontation into self defence.

In conclusion

We have a very practical law of self defence. It is practical because it can work for you even if you don't know what the law is. However, you will be in a stronger position if you understand your rights.

There are a number of urban myths relating to self defence. If you hear them floating about, they are not true.

You may defend yourself, or another person with reasonable force in the circumstances. The law considers your honest belief in the circumstances, but the judge decides what force is reasonable.

Finally, remember that the law of self defence is much stronger than defence of property. Remember your immediate concern may have been for your property, but there is often a very real risk to yourself, which the law considers more worthy of defending.

Acknowledgements

I would like to thank the following people who read this article to ensure it is not misleading or inaccurate:

• Associate Professor Bernard Brown, The University of Auckland, Faculty of Law
• Mr Evan Davidson, VI dan, Te Awamutu, New Zealand Police
• Mr Peter Fuiava, Henderson, Solicitor