Readings:

Week 1 powerpoint presentation on Defensive Force.

Relevant statutory provisions for your jurisdiction.

Lavallee v R [1990] 1 SCR 852 - extract on Moodle

Waidia (extract on Moodle) - students from Solomons, Kiribati & Tuvalu

Colvin, Criminal law of Fiji/ Solomon Islands, Kiribati & Tuvalu/ Vanuatu ch 10

Question

An altercation erupted inside the 'Wild Times' nightclub. It started when angry words passed between Sally Shortfuse and Trevor Doe, who was her former boyfriend. Sally had been in the club with some girlfriends. On the night in question, there was no communication between her and Trevor before the incident that led to his wound.

The incident occurred when Sally was making her way to the washroom. She was accosted by Trevor. He barred her way and, when she tried to get round him, he grasped her arm and told her that they needed to talk. She said, 'Let me go'; he responded, 'Just listen to me'. Sally then shouted, 'You're hurting me', but Trevor held on to her. Sally's brother, Sam was sitting nearby with some friends and within hearing distance when this occurred. He jumped up, ran at Trevor and punched him in the face, knocking him down. Trevor tried to rise to his feet but Sally took off one of her shoes and hit him with the heel. Trevor collapsed back to the floor. Witnesses then intervened and separated Sam and Sally from Trevor.

An ambulance was called by the club manager. Trevor was taken to Oceanville Hospital where he received treatment for a serious head wound that Sally had inflicted. The heel of her shoe was a narrow stiletto-type and two inches tall.

When Sally was interviewed by the police, she said she had been in a relationship with Trevor for two years. They had some good times but he became increasingly controlling and abusive, both verbally and occasionally physically. The break-up occurred three months before the incident in the night club. Trevor subsequently made several approaches to her, seeking to re-establish the relationship. She told him forcefully that it was over but he had difficulty accepting this. Their exchanges were quite acrimonious and her fear of him was growing. She had communicated this fear to her brother Sam and asked him to watch out for her if they were anywhere where Trevor was also present.

She was really worried when Trevor grabbed her in the night club and would not let go: 'I could tell he was angry and I thought he might bash me.' When Trevor tried to get up from the floor, she took off her shoe and hit him with it 'to make sure that we won'. 'I never meant to even injure him. My shoe was the nearest thing at hand. I wasn't really thinking about what the effect might be.'

Sam told the police that he knew about the abusive nature of the relationship between Sally and Trevor. Sally had told him that she was still scared of Trevor and that she wanted him to keep an eye on her if Trevor was around. He was sitting close to where Sally and Trevor started to argue. He saw Trevor grab Sally's arm and keep hold of her despite her complaint that he was hurting her. He decided that he needed to rescue her and so punched Trevor.

Sam has been charged with assault and Sally has been charged with unlawfully causing grievous bodily harm (or equivalent offences in your jurisdiction). Applying the law of your jurisdiction, are any defences of justification or excuse available to (a) Sam and (b) Sally?