编者按：这篇介绍正当防卫的文章，是根据霍建强议员(RAYMOND HUO MP)和高等法院刑事大律师RICHARD EARWAKER BARRISTER (见照片) 的一段对话而整理。对话中关于受害者家属对罪犯“口出恶言”结果被警察起诉一案，因不属“正当防卫”法律范围，故略去。
 国会议员霍建强（Raymond Huo )

高等法院刑事大律师RICHARD EARWAKER BARRISTER                              
    

THE LAW OF SELF-DEFENCE IN NEW ZEALAND
正当防卫：新西兰的有关法律

[1] To most people the Police decision not to charge Mr Zhuo Feng Jiang seems like commonsense. After all, Mr Jiang had been confronted in his family’s takeaway restaurant by an intruder wielding a shotgun and demanding money from his mother and cousin. After knocking the shotgun from the intruder’s hands, Mr Jiang and his cousin pushed the intruder out the backdoor. When the man attempted to grab the shotgun after being warned not to move, Mr Jiang shot him in the leg.
[1] 对许多人来说，警察当局决定不起诉蒋卓烽似乎是常识类的事。毕竟在他的外卖餐馆，他被持枪闯入的家伙挑衅，他的表弟和母亲又在枪口威迫下被人索要钱财。他从非法闯入的嫌犯手中夺下猎枪，又和表弟一起将嫌犯推出后门外。当嫌犯被警告不许动但却置若罔闻反而去抢枪时，蒋先生先鸣枪警告，随后朝嫌犯腿部开了一枪。

[2] While the law of self-defence may seem like commonsense, the case of South Auckland liquor store owner Virender Singh shows that it is not always so straightforward. Mr Singh faced two charges of injuring with intent to injure following an incident at his Otara store last September. He denied the charges saying that he was acting in self-defence. The Otara storeowner had been stabbed in front of his wife and young daughter, his nephew had received a cut to his leg and a neighbouring shopkeeper had been struck in the face with a piece of wood. However, the police still laid charges, saying that he had acted in retribution and that the level of force used was unreasonable. The Court later threw out the charges against Mr Singh saying that the evidence was conflicting and contradictory and that there was not enough evidence to prove the charges against Singh. However, the case raises the question of how far people can go to defend themselves and/or their property.
[2] 儘管正当防卫可能看起来是常识类的事，奥克兰南区酒铺小业主魏能得•辛一案，却表明正当防卫并不是一件直截了当的事。辛先生去年9月在自己小店事件发生之后，却因“故意伤人”而遭两项指控。他拒不认罪，坚持自己是正当防卫。当时辛先生在自己Otara小店，当著自己太太和女儿的面被刺伤，他的侄子腿部被刺伤，隔壁的小店主脸部也被木棒击伤。但是，警察依然提出指控，认为辛先生行为属“惩罚”性并且所用武力“不合常理”。事后，法庭驳回指控，认为警察提供的证据衝突、自相矛盾并且证据不足以支持所控罪状。儘管如此，辛先生一案也引发了一个问题，即就正当防卫而言，大家能防卫到什么程度以保护自己和/或他们的财产。

[3] In order to raise a valid claim of self-defence or defence of another, an accused person must prove three things. First, he or she must be honestly be acting in self-defence or defending someone else. Where a person acts only out of retribution, anger or to teach an offender a lesson it will not be self-defence. Second, the force used must be a reasonable response in the circumstances as the accused believed them to be. This means that the seriousness of the attack or the threatened attack will be judged from the point of view of the person under attack. Then the force used will be judged objectively to determine whether it was reasonable in the circumstances as the person believed them to be. Whether the force used was reasonable will require an assessment of the perceived imminence of the threat, the seriousness of the threat or attack and whether the defensive response was proportionate to the perceived danger. So if it is a relatively minor attack, such as a threat from an intruder with no weapon just his bare hands, it is extremely unlikely to be reasonable to defend oneself with a firearm. However, as Mr Jiang’s situation demonstrates, it all depends on the particular circumstances of each case.
[3] 为保护自己或他人而使用正当防卫，被控方（指行使正当防卫方）必须证明三个要件。第一，他或她必须诚实地行使正当防卫权以保护自己或他人。如果某人是处于惩罚、愤怒或给犯法者一个教训，这种行为便不构成正当防卫。第二，所用武力必须就当时情形而言属适当反应，而被控人（即行使正当防卫人）确实认为是适当反应。这意味著，攻击或威迫性攻击之严重性，必须从被攻击方角度来衡量。所用武力也必须从客观角度来考量在当时情形下是否使用得当。至于所用武力是否合理，需要从威胁或攻击的紧迫感、严重程度以及防卫反应就当时所感觉之危险性角度是否适当等几个方面来评判。所以，如果是轻微性攻击如赤手空拳不带武器，但防卫时却动用武器，这就很难说是合理性防卫了。但是，话又说回来，像蒋先生一案所示，如何判断需要视个案情形而定。

[4] In terms of defence of property, the law is different. In defending land, buildings (other than a dwellinghouse) and movable property, for example a car, a person may use reasonable force to defend his or her property, providing that he or she does not strike or do bodily harm to the trespasser. However, when it comes to defending your home, a person may use force necessary to prevent the unlawful breaking and entering into his or her home. However, the force must be to prevent the breaking and entering and not for any other purpose.
[4] 至于保护财产，这方面法律不同。为保护土地、建筑（区别于住宅）和移动性财产，如汽车，你可以行使合理武力保护其财产，前提是不可以对非法入侵者实施攻击或导致身体伤害。但是，如果是爲了保护你自己的住家，你可以使用必要武力以阻止非法破门而入的行为。但是，所用武力必须是阻止破门而入而非其它用途。

[5] Many people will remember the case of Paul McIntyre, the farmer who was charged after he fired shots at an intruder who was attempting to steal a farm bike from a shed on his property. Alone on his remote Northland farm, Mr McIntyre noticed a carload of intruders acting suspiciously around his utility shed late one night in 2002. He took a pump-action shotgun and went to investigate. After seeing the intruders loading his farm bike on to their trailer, Mr McIntyre fired a warning shot and then aimed a second shot at the rear tyre of the fleeing vehicle. However, rather than hitting the tyre, he accidentally shot one of the intruders, seriously injuring him. Mr McIntyre was charged with injuring with reckless disregard for the safety of others and for discharging a firearm without reasonable cause. Ultimately the jury was unable to reach a verdict on the first charge. In relation to the second charge Mr McIntyre was eventually found not guilty. However, it was two and a half years of waiting and thousands of dollars in legal costs before Paul McIntyre was finally able to clear his name.
[5] 许多人都记得保罗•麦肯泰尔一案。麦肯泰尔是一个农场主，发现非法入侵者从他的农场偷牧用车向小偷开枪而被起诉。当时麦肯泰尔孤独一人在他偏远的北岛北端农场。那是2002年的一个晚上，他发现来了一车形迹可疑的人在他的工具房周围鬼鬼祟祟。他抄起一杆猎枪去看个究竟。发现那伙人正将他的牧用车搬到他们的拖车时，先开一枪示警，再朝已经开出的汽车后轮开了第二枪。但是，碰巧的是他没有击中后轮，却击中其中一人的后臀，致使重伤。麦肯泰尔先生被警察起诉，两项罪名是：“不顾他人安全而鲁莽致伤”及“开枪无正当理由”。就第一项指控，陪审团不能够定罪。第二项指控，陪审团宣告无罪。儘管如此，麦肯泰尔先生是花费了两年半的时间、上千元律师费才洗刷自己的名声。

[6] The law states that shop owners can use reasonable force to defend themselves, any other person and their property. However, those that exceed the level of reasonable force may face the prospect of arrest and criminal charges. The three cases referred to demonstrate the need to get proper legal advice before giving any statement to police. Remember that under New Zealand law all persons questioned by the police have the right to remain silent. This means that under no circumstances can the police force you to answer questions. If you do decide to make a statement then under New Zealand law you are entitled to have a lawyer present when speaking to the police. Even if you feel you have nothing to hide, a lawyer can make sure that your side of the story is fully explained to police and that you are dealt with fairly and quickly. A lawyer is particularly important if you have difficulties communicating in English. The lawyer you choose need not be Chinese speaking, as the police are required to arrange an interpreter to assist a suspect during an interview.
[6] 根据法律，店主是可以使用合理武力保护自己、他人和财产。但是，如果所用武力超出合理程度，则有可能面临被逮捕和刑事指控。上述三个案例表明，在向警察陈词之前，需要得到适当法律意见。千万记住，根据新西兰法律，所有人在警察盘问时，都有权保持沉默。这意味著，无论什么情形，警察都不可以强迫你回答问题。如果你一定要向警察陈述，根据新西兰法律，你有权在警察录口供的时候有你的律师在场。儘管你觉得自己没有什么隐瞒，但律师可以帮助你确定你这方说法，以便详细地向警察解释清楚。警察他们也可以儘快而公平地处理你的问题。如果你的英语不好，有律师在场就更重要了。律师可以不必非要讲中文，因为警察依法，需要在录口供的时候，替你安排翻译。