Kapow! Bam! Splat! I haven't been able to use those words since I was in the Triad.
Well, it wasn't really a Triad.
I think we called ourselves the Banana Bunch and we were in form 1 at Arthur Street School but I'm sure we put the collywobbles up the short pants of the Christian Brothers Junior School.
At least, that was our story.
But the words sprang into my head again with the recent highly charged rhetoric about Triads being engaged to retaliate and vigilante citizen's arrest rights and self-defence rules being rewritten following last week's discussions on the powder keg of South Auckland crime and violence.
Let me try and make the law crystal clear and finish with the proposition that the existing law, in force for well over a hundred years, is sufficient and properly based on good legal principle.
Adequate law enforcement, better parenting, education and satisfying employment are political issues not within the scope of this column, but they are the real drivers. Here are the laws which should be clearly understood.
Firstly, you can use reasonable force to defend yourself or another. Reasonable force must be assessed in the context of the force used or threatened against you or another. Being slapped with a silk glove does not entitle you to use a knife to stop that action but in some cases a shotgun could be used to kill a person who was about to shoot you, or another.
All the circumstances have to be looked at to determine whether your reaction was self-defensive.
If you could have retreated or called the police and remained out of harm's way, then you are not justified in using force.
I think Triads or vigilantes would be prone to act out of revenge, retaliation or utu and those concepts bear no relation to self defence.
Secondly, you can use reasonable force to defend your property but there is an all important restriction in the case of property.
In defending your property you cannot strike the offender and a strike would include everything from a push to the use of a weapon.
This is a most important exception and all this talk about vigilantes being trained in martial arts is exceptionally dangerous, without the crucial warning that you cannot strike someone in defence of your property.
Of course, in the Death Wish series of movies, Charles Bronson simply shot them dead and that is what will happen in New Zealand, on a widespread basis, if we relax the rules in relation to defence of property and use of weapons.
Thirdly, a citizen's arrest is fraught with danger.
It is covered in section 35 of the Crimes Act 1961.
You can arrest someone, and forthwith deliver them to a constable, for committing a crime at night (9pm to 6am), but if you want to do this during daylight hours then the crime has to be punishable by at least three years in prison. For theft and receiving charges, this maximum penalty is determined by the value of the goods being stolen or received.
For stealing up to $500, the penalty is up to three months; between $500 and $1000, 12 months; and over $1000 seven years.
For car conversion, the maximum is 5 years; stealing from a locked box as in a donation container, seven years; assault on a child, two years; and so the differences go on.
The differing penalties for various drug offences make the task even more of a thicket.
Citizen's arrests should be left to law professors carrying calculators.
Fourthly, possession of a knife in a public place without reasonable excuse carries a maximum penalty of two years in prison.
Section 202A of the Act states - "Every one is liable to imprisonment for a term not exceeding 2 years who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon.
It is a defence if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence."
Defence lawyers initially thought that the latter part of the section above allowed the defence to say that Billy the Blade had a knife in his possession only for self-defensive purposes but our courts have made quite clear that this defence will not succeed on the "I only had it for self defence" plea.
Fifthly, similar principles apply to the unlawful possession of a firearm in a public place.
It's not legally acceptable to say that you had it only for your self defence.
However dangerous the problem in South Auckland, and however insidious the racism appears to be, there is no principled argument to widen the rules of self defence or citizen's arrest or relax the rules in relation to the possession of weapons.
Any relaxation of those standards will lead to a frightening increase in the use of weapons against relatively minor property crimes and minor instances of disorderly behaviour.
Such changes cannot be contemplated seriously.
- Michael Guest is a former lawyer and District and Family Court Judge
