THE REAL WANGANUI/NZ POLICE

 12 THE TRIAL

Legal status of self defense

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force should only be used in situations of “extreme” danger. The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. Likewise, when an assailant ceases to be a threat (say, being tackled and restrained), the defense will fail if the defending party presses on to attack. A somewhat less obvious application of this rule is that admitting the use of deadly force in an attempt to disable rather than kill the assailant can be construed as evidence that the defendant wasn’t yet in enough danger to justify lethal force in the first place. Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception (see: Edward Coke) which argues that one cannot be expected to retreat from one’s own home, namely, “a man’s house is his castle, et domus sua cuique est tutissimum refugium” i.e. Latin for “and each man’s home is his safest refuge”). However, if one is “challenged” in a bar for a fight, accepting such challenge, instead of walking away, generally will not constitute a self defense.
In some countries, the concept of “pre-emptive” self defense is limited by a requirement that the threat be imminent. Thus, lawful “pre-emptive” self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person.
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The Queen v Jacobus Johannes Nicolaas Van Der Lubbe

(Discharging a firearm in a manner likely to endanger the safety of others.)

2/11/1992

Donald Peter Britton (sworn)
My full name is Donald Peter Britton. I am not doing demolition at the moment but I reside in Wanganui. Earlier this year I owned a property up the Makirikiri Valley. I sold that property to the accused in this trial Mr. Van Der Lubbe, after a fashion. Possession of that property changed hands earlier this year. After that property changed hands I left some equipment and personal property at the farm, it was already there. My arrangement with Mr. Van Der Lubbe concerning that property was we had a verbal agreement and Jack said if I signed the property over I could keep my gear there till I found somewhere to put it and I could have a table and chairs and things like that and 20 deer I had to keep there, plus horses and sheep. I had taken what I could take and stored it in a garage where I was having to sleep. I was intending when I found some place to buy to take the remaining property but up until then it was all right. At the time the property was sold my relationship with Mr. Van Der Lubbe was that he had bought the property such as I had to sign it or go to Court. He started talking to a tenant in my house in town to negotiate it. On the evening of May 18 when I visited the property, that’s the day before he shot my wagon, I went up to get a posthole rammer, a spade, some posts and wire strainers. I asked Jack if what he had said originally about a lease on some land, on part of the land was he going to sign it and if not then I would take my 20 remaining deer back. I had a herd of deer, I had bread over a period of time with some colourful deer which I kept a receipt for. When I said, are you going to sign this agreement or I’ll take the deer back, Jack said, no, no I’ve sold those and I said no you haven’t I just saw them. I said, “are you going to sign this piece of land with the pine trees on it and he said no I don’t think I will. So I said, well I might as well take the deer back since I have a receipt. He seemed pretty agitated and I said to him it didn’t really matter if you go back on your word about signing the lease because I’ve just acquired a piece of land down the road which I’ve got a receipt for here. (”I made sure I bought a place in the Valley.”) After that it was getting latish by then and I said, I’ll be up in the morning to get some of my gear. Mr. Van Der Lubbes reaction was I didn’t think anything of it; he didn’t really have a reaction. He seemed annoyed about me having a receipt for the deer and he seemed annoyed that I’d bought land down the road because I then had somewhere to put my gear. I then drove away. On the next day in the morning I was asleep in the garage, that is at Willis St. in Wanganui. I was asleep in the garage because I had nowhere to go. There is a house on the property, it is my house, but I rented it out. I sleep with the door open and Sandra Van Der Lubbe burst in. Sandra Van Der Lubbe is Jack Van Der Lubbes wife. She walked through the door and threw a piece of paper on the bench above my headboard or the head of the bed. She said this is a trespass notice.
She said you are not to come onto our property. I said, what do you think you are coming at, I told Jack I’d be up this morning to pick up some of my gear. She started to abuse me. In response to that, I was still laying in bed and I didn’t like to jump out of bed because I had my nightshirt up around my neck. She abused me and called me lazy and goodness knows what and I finally managed to get out of bed and tried explaining to her that I’d told Jack I was going to get the gear that day but I’m convinced she was trying to provoke me. There was ra ra ra from Mrs. Van Der Lubbe and it was like talking to a brick wall. I was getting nowhere and couldn’t get a word in so as she was going down the drive, she was walking down the drive, I was still trying to explain that I wanted to get my gear today as she knew and all I received was more insults so finally as I walked past the ute, there was sitting on the back of the ute a piece of reinforcing, bent on one end about this long that I used to run through to trap deer, a trip wire, and I picked it up and told her to piss off. She was probably about 8 or 10 feet away from me then. Nothing happened then. When I went out there I think she had the two boys sitting in the car and they were just sitting there watching. From there I yelled out to Carole, the lady I rent the house to. At this stage Mrs. Van Der Lubbe was walking to the car. I then went over towards the house and yelled out to Carole. I walked towards the house and went back around and got changed out of my nightshirt. I got dressed and went to get a friend to give me a hand to get some of my gear. (He needed a witness) This friend was Tom Knox. I wanted him to give me a hand because he wasn’t doing anything and he had stayed on my property with me before and had been up there with me a week before to get a spiker. A spiker is an 18-month-old male Fallow deer. I used my Subaru. Sandra Van Der Lubbe arrived at probably around 8 or 8.30 I didn’t take much notice of the time. I don’t know really. It could have been anytime really. When I went down to pick up Mr. Knox I took a sleeping bag out of the ute and my .22 rifle. I left the sleeping bag and rifle at Bignell St. where Tom was staying. I took my rifle out of the car because Tom would want to sit down, its only a two seater, plus after the way Sandra came into the shed I thought maybe there must be something up, you know, it wasn’t normal. (He kept the rifle on the sleeping bag on the floor behind the seat.)
By removing the rifle, I think Jack is likely to conjure up things. As a result of leaving my rifle at home, I didn’t think anything would happen. After I picked Mr. Knox up I told him I’m going to get some of my gear and I’ll need a lift. I just drove up to Upok. When I arrived there I looked up at the house and there appeared to be no one home so I walked towards the gate to see if it was open or locked in any way because it had a chain on it. The gate is about a hundred or so yards from the house. I walked up and looked at it and there was a padlock on and it was locked and I thought darn it. I looked up at the house and thought there can’t be anybody home so I looked around and there was a six by one board lying near the gate. I stuck the board under the dog side of the gate and tried to lever the gate off the hinges. The board broke and just at that time I was going to throw it over the top and I threw it over a tree and it broke, and a Yellow Mazda truck went past and I looked to see who it was because they’d probably wonder what I was doing. The guy in the truck was about fifty, I think. (Irrelevant detail to make it sound true.) So I then climbed the gate and picked up a piece of 8 by 2 and stuck it under the hinge. I lifted the gate off the hinges and I knew I would be able to get it off eventually because I hung the gate for Jack about 3 weeks before as a favour. I had told Jack that night, which was probably 12 hours previous that I would be up in the morning to get my gear, and I needed my gear because I had only just signed for that piece of land down the road that same day, the 18th plus I needed my table and chairs. We had a verbal agreement that I could keep my gear as long as I wished until I had found somewhere to put it. I then lifted the gate off the hinges. Mr. Knox was sitting in the ute at this stage. I then lifted the gate wide open and checked to see if any deer were handy to the gate. I hoped back in the ute and started to drive up the drive. I got halfway up the drive onto the corner that swings round to the left then I heard the sound of a gunshot and it sounded like it boomed on the roof. I knew it hadn’t hit the roof but it sounded like it had gone over the roof. I didn’t know where it came from because it took about ten minutes to get the gate off the hinges and up to this stage I had thought no one was home so I though it was Jack just being a clown. Tom said, fuck he’s shooting at us. I said, don’t worry about it; he’s probably just clowning. As I swung around the corner there was another shot and I felt a jar on my feet, like a vibration through my feet. I actually thought it hit the road just under the ute and the ute stopped. I thought I had stalled it. I stuck my head out the window and I said, why don’t you shoot me in the head. I only came to get some of my gear. While this was happening Mr. Van Der Lubbe appeared from nowhere. In relation to this, after the first shot, as I was driving up the drive on the corner, the house is up on a rise to the right and I took my eyes off the road for a second and Jack was about 12 feet away from the gatepost, from the post at the end of a rail fence and I looked back at the road again because I was trying to navigate the track. Mr. Van Der Lubbe was about halfway between here and the back of the room from the house about 20 or 30 feet maybe, 40 feet. The corner of the house is about that far from the edge of the bank. Mr. Van Der Lubbe was about 50 yards away from the vehicle, I think, round about that. When I first saw Mr. Van Der Lubbe he was just there with a gun. After the 2nd shot he moved towards the post to get a lean. That is to get a more accurate shot. (Had he got his rifle out he would have got the bullet.) I wound the car over a couple more times; I thought I had stalled it. As I got out of the ute, I was going to hop out of the ute and open the bonnet to see what stalled it and that’s when Jack was moving over the to the post to get a lean. He was aiming the gun at me and yelling, ranting and raving gibberish, moving towards the post to get a lean on the post. I heard him say I’ll kill you, or something like that because that was recognisable and the rest wasn’t worrying to me too much. I was wandering why the ute had stopped. In the flurry of words I heard him say something about Tom. I then turned my back on him. I was more concerned about why the ute had stopped. At this stage I didn’t know he had hit the wagon. Tom was sitting in the car. I lifted the bonnet of the ute and tried to find out why I’d stalled it. I was looking under the bonnet and by then Tom hopped out and came round the front of the car to see why I’d stopped too and Tom spotted a bullet hole through the bonnet into the motor. He picked it up first. He said, fuck he’s going to kill us. I felt pretty uneasy then with my back facing him because he had a gun pointing at me. At this stage he was ranting and raving. It happened fairly fast and I just sort of more had the feeling I got in the back of my back and head because I’d just told him to shoot me in the head. I thought it was probably better to turn around and face the guy and say you idiot, shooting my wagon. That is what I said to him. I think I said, you’ve done it now, shooting my ute. I might have said to him I want my table and chairs. (Nutter.) I got back in the ute. I let it coast back down to the bottom, it was uphill all the way up that road, so I let it coast back downhill and back through the gate. I put the gate back on the hinges. The accused disappeared again at that stage I think. I wasn’t watching him after that; I was trying to navigate the ute. I put the gate back on the hinges and started walking back up the road towards James’ well to Mike O’Keefe’s. I got about 30 feet from the gate, as I started to walk up the road I threw the big plank in the drain that runs into the creek because I grabbed some watercress. I then went on to ring up the police. I rang the police. I probably only got 100 yards up the road from the gate and Alan James picked me and Tom up. He drove us up to Mike O’Keefe’s place and Mike O’Keefe was down at the bottom at the cattle yards and he said, sure, go and use the phone. I didn’t look at the time, from the shooting it would probably take about 10 minutes maybe, a quarter of an hour. I don’t really know. I have been using firearms since I was twelve and I would use them all the time. I have been shooting with Mr. Van Der Lubbe. He used to come along with my stepbrother and myself. We were poaching deer. (1969/70 haven’t done it since.) I saw Mr. Van Der Lubbe shooting occasionally. He’s not too good a shot when he’s exited. Anyone that misses a Sambur at 50 yards side on isn’t the best. (The evil bastard is trying to assert that it was only because I’m a supposed bum shot that I missed him.) After I rang the police, they towed my vehicle away. I walked back down the road and I think I could see it from v day cars. (That’s how it’s written in the Court record.) I inspected it about a day later, I’m not sure. I found two holes in it but I knew the second hole was in it because Tom saw it when he got back into the ute. That was the first shot actually, and it was just behind Tom’s door.

Cross-examination by Mr. Brosnahan.
Mr. Britton, after you had levered the locked gate off the hinges you drove up the drive towards the house?…Towards the house, yes. How far up the drive did you get before you heard the first noise?…Just prior to the corner, 50 yards. So by that time you had travelled the distance from the roadway up to that point in the vehicle?…Yes about 50 yards. (Witness shown booklet of photos exhibited by consent to be produced as exhibit 1.) Photo 1, is that a view from the road up to the house that you are talking about?…It is. In that photo, can you point to the position that the vehicle was in when you heard the first noise?…Yes it was heading towards the first corner (witness indicates on photo slightly to the right of the house in the picture up the drive where it disappears into the hill). You are pointing to a spot between the roof of the ute and the house where that looks to be shellrock on the bank of the drive?…Yes it is shown better on photo 9, just about opposite those piles when I heard the first noise. Are the piles you are referring to on the left of the apex of the corner?…That would be it. So by the time you had travelled the distance from the roadway up to that point in the vehicle?…Yes about 50 yards. Having spent some 10 minutes or so jemmying or levering the gate off at the bottom?…Yes I said I used two boards.
The second shot and where the vehicle stopped is that shown on photo 9?…The bonnet wouldn’t have been that far away from where the road disappears into the hill. The vehicle would have been continuing around that road and facing towards the photographer?…The railing goes another 20 or 30 feet. Jack was at the end of the railing, just past the railing to start with. We are trying to ascertain where the vehicle was at the time of the 2nd shot?…The front of it would have been just up under the bank a bit heading towards where Jack would had been just past the post. Would that mean you would have travelled another 10 to 20 meters?…Not that far, it happened fairly quick. Would you have travelled another 5 to 10 meters?…From here to the wall at most. And at that stage the vehicle stopped?..Yes. And you had seen Mr. Van Der Lubbe at the railing up by the house?…Forwards of the house. And he was yelling at you you say, telling you to piss off?…No, no, I don’t recall him saying piss off. Did you at any stage threaten to shoot him with a 222?…No. Do you own a 222?…I own a 222. But you made no threats to him?…No. You don’t recall him telling you to piss off and get off the property?…After the shooting and amongst me getting out of the car he was saying something to Tom but other than that I was concerned with what was happening with my vehicle and I wondered why it had stopped. I didn’t know he had hit the vehicle. And at that stage, after you were out of the vehicle, is that when you say he moved towards the post to get a lean?…As I was getting out of the vehicle he started moving to the post?…And you went round the front of the vehicle in clear view of him?…Yes I didn’t know he had hit the car. And then you got back into the car and freewheeled back down the drive to the road?…After I said to him, you idiot, you’ve done it now shooting my wagon. Were you dancing around at that stage saying, I’ve got you?…Don’t be silly. Is that no?…That is no. And you freewheeled back down the drive?…Yes. And got out at the bottom and put the gate back on its hinges?…Yes after I had pushed it off the road a bit after freewheeling down. That is the vehicle you are speaking about is it?…Yes. And you put the gate back on the hinges?…Yes. When you had taken the gate off its hinges, the gate shown in photo 1, isn’t it?…Yes. Did you carry the gate in towards the property or out towards the location?…Into the property. When you freewheeled down the drive in your vehicle, it wouldn’t have ended up where it is shown in that photo would it?…No it didn’t. You have pushed it into that position haven’t you?…The drive is on an angle and I came down like this and I shoved the vehicle off the road a bit. So you pushed and manoeuvred the vehicle into the position shown in that photo?…That is where I pushed it to. I wasn’t going to push it back to Wanganui. Mr. Britton I suggest that you manoeuvred the vehicle into the position shown in photo 1 so you could later tell the police that the vehicle had been shot at while you were still on the road and you hadn’t gone into Mr. Van Der Lubbe’s property at all?…You can suggest what you like. Is that true?…Not really I wanted to get it off the road actually. Wouldn’t it have been easier to have left the vehicle on the run in from the road to the gate if you wanted it off the road?…No that is no good. Because you wouldn’t be able to suggest the bullet holes had been occasioned from that position would you?…I think you have got it wrong, I told you what happened. Shortly after the police arrived you were interviewed by members of the police weren’t you?…Yes I was. At that time you told them the shots had been fired while you were stopped down at the gate on the road didn’t you?…I was going to for awhile. You did didn’t you?…I had been se set there all right. You were set up?…With a trespass notice when we had a verbal agreement. Mr. Britton, when you were interviewed by the police shortly after this incident you told them the shots were fired while you were still on the road and you hadn’t gone into the property didn’t you?…I probably did. Is there some doubt in your mind?…You read through the thing and see. You told them that you had seen Mr. Van Der Lubbe up at the house while you were on the road?…I lied.
(This is how his first statement read. “We got to the road gate. I got out of the Subaru. Tom was still in the truck. Jack came out from the house, wait on that was after he had fired the first two shots. So we got to the road gate. We had only been there for seconds. A gunshot hit the truck just behind Tom’s door. There was a second shot I felt it jar on my feet. The truck stopped running. I got out and yelled to him to open the fucken gate. “I want to get my gear.” I was shaking the gate. I turned round and noticed the bullet hole in the bonnet. To start with we didn’t know the bullets had hit the truck. Cause when we first came round Tom had said he fired at us. I thought he was too gutless to shoot at us. When I was shaking the gate I said, “you useless cunt why don’t you shoot at me”. I didn’t realise that at this stage he had been shooting at us. I thought he was firing warning shots. He was ranting and raving. He was saying fuck off, he would shoot me. At that stage he was aiming the rifle at me. I was wondering if he would pull the trigger or not. I went back to the truck and tried to start it, it wouldn’t go.)
And that is why you parked it the way you did?…I had to freewheel backwards, when the motor doesn’t run you have no brakes and I had to swing back around up the valley or I’d be the wrong way around to shift my vehicle off the road so I pushed it as best I could. But when you first spoke to the police you told them that you were standing shaking the gate yelling at Mr. Van Der Lubbe to open the fucking gate?…It never happened. You gave them a whole string of lies didn’t you?…Don’t go on pal, you are making a lot of guff up. It is quit simple, in the morning out of the blue I get a trespass notice thrown at me; this is when it dawned on me that maybe on paper I had trespassed. Up until that morning I had a verbal agreement to keep my gear there as long as I liked because I had nowhere to put it and that is why Jack agreed to that so I signed my property to him. And when you spoke to the police that morning you told them a whole string of lies?…No it wasn’t, I felt I had been unjustly let down over my gear and the trespass thing when we had a verbal agreement. That was a mistake I admit but because I was set up for trespass which I didn’t think was a real issue. So you were there to get your gear Mr. Britton?…That is dead right. The night before you had signed up for some property?…That is right, the day before. I had been negotiating prior to the signing up. And you signed up the day before on the 18th isn’t that what you told us this morning?…I think so. And you were going to take possession of the property you had signed up the day before straight away?…I was would you like a receipt?
And that property was up the road was it?…No, down the road. It had a house on it an old dwelling. A house?…An old house. That you were going to live in?…No I would shift a house there. I just wanted somewhere to store my gear at the start. The house was derelict and falling down?…What has that got to do with it? It was derelict?…If you say so. So all that changed in your living arrangements was that you had signed up for this property down the road with a derelict house on it, is that correct?…No it isn’t actually, so rephrase it or something. I understood your evidence to be that the reason you wanted all your gear was because you had signed up for the property down the road?…That is right but that’s not what the table and chair was for, because I had just bought a house in Ikitara road as well. So the table and chairs were for Ikitara road?…Correct. But all the other items you urgently wanted that morning were for the property down the road?…It was fencing gear, the place isn’t fenced. I have untold stuff you accumulate when you have land still sitting at Jacks which we had a verbal agreement on. And it was so urgent that you get this gear that you that you were prepared to ignore the trespass notice given to you?…To me I didn’t really believe that as such. You were prepared to?..Remember that evening I said to Jack I’d be up to get my gear for Christie’s place. And you decided to ignore the trespass notice you had been given?…I didn’t take it as a legitimate trespass notice for a start. (Why lie about going onto the property then?) And you were prepared to ignore the locked gate and jemmy it off its hinges?…We had a verbal agreement and the last I had spoken to Jack was I’ll be up tomorrow. And you were prepared to ignore the locked gate and jemmy it off its hinges?…The last time I spoke to Jack was to get my gear right, we had a verbal agreement and to me there was nobody home when I got there and Jack could have been in town with his wife for all I know. You had been upset, depressed and concerned over the sale of this farm for some time hadn’t you?…I felt a bit done in the eye but what are you getting at? You had signed up for the sale of the farm with Mrs. Van Der Lubbe in October last year?…I never saw Mrs. Van Der Lubbe, Jack and his father came up and brought the contract with him and a typewriter. The contract was with Mrs. Van Der Lubbe?…No the morning that happened Jack rung up and said, I’ll come up about buying this land and I said, leave it for a few days. Was the contract…You asked me a question, he said, no strike while the irons hot and brought down his father and a typewriter and the contract but not Mrs. Van Der Lubbe. The contract was between you and Mrs. Van Der Lubbe wasn’t it?…I didn’t realise that until they had gone. Anyway the contract was signed in about October?…Whenever it was signed, I didn’t take much notice. Due to be settled in December?…Probably. You refused?…I tried talking to Jack. You refused?..I tried talking to Jack about it. Did you refuse to settle when it was due for settlement?…I think I consulted a lawyer. Mr. Britton, did you refuse to settle the contract when it was due for settlement?…I probably refused. Proceeding was issued against you in the High Court?…Yes. You got angry about it?…No I didn’t get angry at all about it. Just before they were due for a hearing, after you had taken advise…. I’d taken advise for quit awhile. And you agreed to settle?…I was forced to settle. But you did?…I would have been sued $60,000 out of the blue for nothing. But you were angry over the whole situation weren’t you?…Disappointed, I had known Jack for 30 years. You were very depressed?…I was disappointed. And threatened suicide?…Talked about mood swings when sometimes you wanted to kill someone and sometimes talked about suicide?…Where do you get it from? I am asking, did you do that?…No. Anyway things settled down didn’t they, you passed over the land and you got paid?…I was forced to sign and I signed on the last date or go to Court. And you got paid and handed over the land eventually?…It isn’t all that simple; Jack took in part of the contract after he went. Did you settle and get paid?…Either that or go to Court. Did you?…I had no way out, all right. So did you?…Yes I was forced to do it. And after that things settled down for a while didn’t they between you and the Van Der Lubbes?…How do you mean? You were up there riding around the property?…Nothing had changed, we had a verbal agreement that if I signed the agreement he would give me a piece of land and I can stay on the piece of land and he knew that I liked the land and if I had nowhere to take my deer he would buy the deer off me, I wanted to keep 20 of them. It was verbal. I have known Jack for 20 years and this was verbal. The same as I verbally kept my gear there. He asked me verbally, could he use my table and chairs in the house. Did things settle down between you and the Van Der Lubbes and you used to ride your horse and have a meal?…Things had been pretty well the same. But there was a blow up between you and the Van Der Lubbes the night before?…There was no blow-up. There was a disagreement over the lease?…There was a disagreement in respect he decided not to sign it after I altered it twice. Were you happy about that?…Either I took back the 20 deer of my choice which I had a receipt for or he goes ahead and honours his verbal agreement. Did you say, either sign this lease or I’ll take drastic action?…Don’t be stupid. Did you tell him you had a mate who had served two terms in Vietnam?…I don’t have any mates who have served in Vietnam. Who have killed people and wouldn’t mind doing it again?…Surely he hasn’t been feeding you this? Note 5 lines down.

1

You told him before you left on the 18th that you had the barrel of your rifle fixed?…I don’t think so, I might have at some stage right my gun was shooting straight because I got a spiker but you can’t take that out of context. So you deny any sort of threats being made to him on the night of the 18th?…That is dead right. Well the trespass notice must have been a real surprise to you?..It was. I couldn’t understand it and that was why I was trying to argue with Mrs. Van Der Lubbe. I thought it was a crazy thing to do. And were you upset when she gave you that?…I couldn’t understand it or work it out.
Were you angry?…I didn’t know what to think; it was out of the blue. Were you angry when she gave you that?…After her barracking me, and I couldn’t get through to her, I said, look I’m coming to get my stuff today. I told Jack last night and she abused me more and then I felt angry and pissed off that she would insult me yelling and screaming outside the house where the lady was asleep. And you were angry by that stage?…I wasn’t really sure what to think, I was disappointed and didn’t believe what she had served on to me to being genuine. You were angry?…I was pissed off. And that is when you picked up the steel bar?..Yes, because she was harassing me and trying to provoke me. No one would normally come and serve you something and it wasn’t done in the normal manner. You picked up the steel bar at that stage?…A piece of reinforcing and told her to piss of. I was on my property. And you waved it at her?…Yes and said piss off. And threatened to kill her?…Don’t be stupid, I never said that. And as she got into the car to drive away you picked up a rock and threw it at the car?…No I didn’t. So you went and got changed at that stage is that right?…I tried to yell out to Carole in the house. But she was asleep?…That is right, why do you think I yelled? You went and got changed and went straight to Tom Knox’s place?…I think I grabbed the paper and had a quick look through it and handed it to Carole. And then drove to Tom Knox’s place?…Yes. Would that have been within 5 minutes of Mrs. Van Der Lubbe leaving the Willis Street property?…I don’t know how long it took me to get dressed, it probably could be. You did it straight away didn’t you, after you had been served with the notice?…I gave it to Carole. Within minutes, it wouldn’t have been an hour?…Of course it was within minutes. And when you got there you took a rifle that you usually carry in your vehicle out?…I don’t usually carry a rifle in my car, no. Do you frequently carry a rifle around with you?…No, just prior to this I had 20 remaining deer of my choice, hinds, 6 stags to do what I liked with such as for my freezer or to breed with and I shot one up at Jacks with Tom for some meat. The gun wasn’t exactly shooting precise because where I aimed at this young stag it didn’t hit so I went a few days later to a spot for a hunt and knocked over a spiker, that is when I told Jack I had the end of the barrel re-crowned and it was shooting okay. That is the reason I had the gun in my car at that stage. How long had that been before this day?…Probably a couple of days, it was just behind the two seats in the ute. Is that where you kept it?…It is not where I kept it; it is where I had it at the time. Behind the two seats?…When I went hunting. On that day is that is that where it had been, behind the two seats?…Buggered if I know, it probably was, I took it out anyway and the sleeping bag was on the seat. It would fit behind the two seats wouldn’t it?…Of course it does.
That is where you keep it isn’t it?…No, it’s not where I keep it. You certainly didn’t have to take it out so Mr. Knox could sit in the car?…I just emptied my ute out, all right. Did you have it with you in the ute the previous night?…Of course I did. That is the night you had been at Van Der Lubbes the night before?…So what are you getting at, I told you I wouldn’t take it out if it wasn’t there. I would like you to have a look at this piece of paper…What about it? Is that your writing?…I don’t think so; you can compare it with my writing here. There was a heap of these left in the house when I moved out. It’s not your writing?…Nothing like it. No reason for it to have been in your ute?…Give me another look at it, it has been ripped off pretty conveniently, (indicates prior knowledge) I don’t know what it’s trying to insinuate. (NEW SCOPE HIT JACK) I asked, had it been in your ute to your knowledge?…To my knowledge, no it hasn’t. (Compare Britton’s scribbles on the below document with that on the “piece of paper” attached at the bottom left
2

3 And this one.

I suggest Mr. Britton that you headed up to the Van Der Lubbes property that day in a very angry mood?…No that’s wrong. That you threatened Mr. Van Der Lubbe the night before?…No I had not threatened Jack in any way you tell me why is it. And you threatened his wife that morning?…No the only time I was pissed off was when she kept barracking me in the morning outside Carole’s window in Willis Street. You hadn’t arranged to go and pick Mr. Knox up on that morning had you?…Of course I hadn’t. Why did you instantly decide to do it then?…Because when that had happened I didn’t know and couldn’t work out an explanation for it and thought they must be trying to keep my gear because it coincided with me saying I had got the place down the road and I was going to get my gear. It was only when I could shift my gear (so he goes up there in his ute to get his truckloads of gear) that I got that the next morning before I got out of bed and it was the last thing I would have imagined would have happened. Are you a pretty volatile sort of person?…What do you mean? You get angry when things don’t go your way?…How do you mean? probably no more than you. You don’t consider yourself to be a violent person at all?…I have never struck anyone in violence, only in self-defence. And you didn’t threaten Mr. Van Der Lubbe when there was problems over this lease you wanted?…No, I told you that. But did you decide to lie to the police when they first interviewed you after the incident and pretend you hadn’t gone onto the property?…I thought, after I had walked down the road, shit this guys set me up for trespass. 74 lies this time.
Re-examination by Mr. Ross for the Crown.
Mr. Britton, carrying on at that point, can you just clarify why you lied to the police?…Because I realised Jack had set me up for trespass. I had in my life two other trespass notices.
Judge Linton Laing.
When your .222 is behind the seats of the ute, when it is there, is it visible to a person standing by the ute?…Standing by it? I don’t know, it could be, I haven’t had the .222 in the ute for a long time. If you had the door open you might see the butt, but my .222 was in the shed. With the stag you shot for Tom…No with Tom. With Tom, how long before May 19 would Mr. Van Der Lubbe have last seen your .222?…My .222, probably when he came and parked his bus at the house and I was still there moving a couple of things out from the bedroom and that but I didn’t shoot the spiker with the .222. (And how can you tell from a view of the butt only what calibre the rifle is? Judge Laing showing his pro police bias.) 3 more lies.
Thomas Leonard Knox. (Sworn.)
My full name is Thomas Leonard Knox. I reside in Wanganui. I reside in Wanganui. I am unemployed. I know Mr. Donald Peter Britton. I know Mr. Britton because I used to live on his property a year ago and we worked together on demolition jobs. I used to live on his property at Makirikiri. I know Mr. Van Der Lubbe but I’ve only met him a couple of times. I met Mr. Van Der Lubbe one weekend when I went up with Donald. That was a few months ago. I don’t remember the date. I would have met Mr. Van Der Lubbe about twice. On 19 May I recall Mr. Britton arriving at my place on that day. When he arrived he dropped some gear off at my flat. That was a sleeping bag and a rifle. We then started going up to Makirikiri and he asked me to give him a hand to shift some of his property. When we got to the property the gate had a lock on it and we had to lift the gate off the hinges to get onto the property. Donald did that. I sat in the ute. (He didn’t want to aid and abet Britton in his trespass.) After the gate was taken off the hinges Donald started driving up the drive until we got to the second bend and then there was two shots. The first shot landed just about two feet or a foot or so behind my shoulder in the back of the van. We could hear the shot. At the time we heard the shot I looked up and saw Mr. Van Der Lubbe up the top looking down on us with a rifle in his hand. Mr. Van Der Lubbe was about 60 or 70 or 80 away from where we were.
After that first shot was fired we turned the corner facing towards the shot and the second shot went through the front of the wagon and stalled the wagon. Mr. Van Der Lubbe at that stage was near the fence by his house. I heard some words spoken at that stage but I didn’t catch all of what they were saying to each other. Mr. Van Der Lubbe was telling us to get off the property. He said he would shoot up the wagon if we didn’t get off his property. Most of the time I was in the wagon until I was asked to look at the damage and I got out to check the damage. When I heard Mr. Van Der Lubbe say those words I was in the van still. I can’t recall what Mr. Britton said. A lot of words were said and I didn’t take it all in. After the shots were fired I got out to look at the damage done to the front of the vehicle. Mr. Van Der Lubbe was still looking down at us as far as I know but I had my back to him looking inside the bonnet of the car. Mr. Van Der Lubbe, when I got out of the vehicle was still standing by the post or fence outside his house. When I checked the vehicle I found the throttle cable had been split in half by the shot of the bullet. I said to Donald, lets get out of it, that I didn’t want no more of it. We got back in the wagon and drifted back down out past the gate and proceeded to put the gate back on the hinges and walked up the road to the nearest neighbours to ring the police. We left the car on the side of the road down by the gate. We just rolled it back and let it roll back forwards like it was sitting there. We couldn’t move it at all because there was no way of starting the motor. We walked up the road to the nearest neighbours and rang the police. Looking at the booklet of photos, photo 1 I recognise that photo. That photo shows the driveway to the Makirikiri property. In that photo the car was here when we heard the first shot (witness indicates area almost in front of the green bush before you turn the corner.) In relation to that photo, I saw Mr. Van Der Lubbe standing just around the corner of the photo (indicates bottom right hand corner.) The vehicle when I heard the second shot was here (witness indicates area just where the surface of the road disappears from view behind the tussock.) Mr. Van Der Lubbe at that stage was in the same position.
Cross-examination by Mr. Brosnahan.
Mr. Knox, were you somewhat surprised when Mr. Britton came and asked you to come on this jaunt with him?…I was really, yes. He didn’t tell you when he came to your house that he had been served with a trespass notice did he?…Not at that stage, not until halfway up to Makirikiri he told me. And you were committed to going?…Yes You said that you had only met Mr. Van Der Lubbe a couple of times for a short space of time?..Yes that is true. When Mr. Britton decided to leave his firearm which was in the vehicle at your place you thought that was sensible didn’t you?…Yes, I didn’t know what was going on (he knew all right) or why he left it there. But you did think it was sensible and thought that was something you should tell the police when you spoke to them later?…Yes. You had known Donald Britton for quite a long time hadn’t you?…About two and a half years. And you have seen him get pretty angry and pretty exited when things don’t go his way?…Yes. And that is why you were pleased the rifle had been left behind?…Not exactly but it would have been a help to him without it being there. You felt more comfortable about him not having a rifle?…Yes.
(Britton knew that if he left his rifle in his ute his provocation would be far less likely to have the outcome he so desired.)
Re-examination by Mr. Ross.
What sort of mood was Mr. Britton in when he came round to see you?…He seemed to be fairly calm about things.
Lance Alan Walker. (sworn)
My full name is Lance Alan Walker. I am a Police Constable stationed at Wanganui. At approximately 9.07 am on 19 May of this year I was directed by Control to attend an incident at the Van Der Lubbe property at the Makirikiri Valley. At this stage I was accompanied by Sergeant Roe and Constable Mills. We attended to the Makirikiri Valley and I believe at that stage there was a firearm involved. We stopped short of the Makirikiri Valley property until the Armed Offenders Squad was mobilised. They arrived under the direction of Detective Kerrisk. We proceeded to the property and under the control of the Armed Offender Mr. Van Der Lubbe was taken into custody. A short time later I spoke to the defendant Mr. Van Der Lubbe whom I identify in Court (witness identifies accused seated in Court.) As a result of our conversation took notes and seek permission to refer to them.
Judge Laing.
Very well.
Dated 19.5, 10.00am Makirikiri Valley, spoke with Jacobus Johannes Nicolaas Van Der Lubbe. Mr. Van Der Lubbe told me that last night Donald Britton came around to our place and took some posts of his. Mr. Van Der Lubbe said he talked to Mr. Britton for a while down at the gate. I asked him who the guy was that was with him the other day. Mr. Van Der Lubbe asked Mr. Britton who the guy was with Mr. Britton the other day, and Mr. Van Der Lubbe said Mr. Britton replied that this guy had been to Vietnam, that he had killed lots of people and that he wouldn’t hesitate and would enjoy killing some more. He said that Mr. Britton told Mr. Van Der Lubbe that if he didn’t lease the 2 acres of land that he, meaning Mr. Britton would take drastic action. Mr. Van Der Lubbe told Mr. Britton that he was just threatening him and that Mr. Van Der Lubbe was not interested in threats. He said at that stage when Mr. Britton left he went up to the house and talked the situation over with his wife, Mrs. Van Der Lubbe and that they decided to serve a trespass notice on Mr. Britton. He said the following morning that his wife went into town with a trespass notice that he, Mr. Van Der Lubbe had typed up and said his wife was to serve it on him being Mr. Britton. (Sandra insisted on serving it on Britton. I wanted to leave it on the locked gate for him to find when he came up next.) Mr. Van Der Lubbe said that his wife was upset because Mr. Britton had threatened her and thrown stones at his wife’s car. He went on to say that while he was on the phone that same morning, the 19th, he saw Donald Britton arrive at his gateway with Tom Knox. He said Donald Britton tried to break into the gate, took a hunk of wood and lifted the end of the gate off its hinges. He said Mr. Britton drove up the driveway but before he did this he yelled out that he was going to shoot me, meaning Mr. Van Der Lubbe in the head with his 222. He said Mr. Britton then drove up the driveway and got to the 2nd bend and then said I, meaning Mr. Van Der Lubbe fired two shots into his vehicle, one in the front and one in the side back. At this stage I cautioned Mr. Van Der Lubbe and advised him of his rights to a solicitor and then I asked him some questions in question and answer form. I questioned him as to which firearm he used. I said, which firearm did you use? He said, 243. I said, and you fired how many shots? And he said, 2. I said, the reason you fired the shots? He said. I was fearful for my life, the man had threatened my life, four times, that’s why I fired.
I said, was Britton armed? He said, I don’t know, he always carries a firearm in his car; I didn’t see a rifle. I said, what happened after you fired the shots? He said, Britton got out of the car and said, hee, hee, got you now, you made a fatal mistake, got you now. He paced around the car going hee, hee and saying nighttime is my prerogative. I constantly told him to get off my property. He then backed down and him and his mate Tom Knox put the gate back on its hinges. Tom held the lock end and Britton put it on the hinges. They then drove the car on the road, got out and walked up the valley. The next time I saw them they were walking down towards my place. I said, so the reason this has happened is because you served a trespass notice on Britton. He said, oh yea, the wife served the notice. I said, do you have a firearms licence? He said, no, the wife has. I said, were you aiming to hit Britton? He said, No, definitely not, just to stop the vehicle. I said, Are you a very good shot?…He said, Yep, If I wanted to hurt him I could have done it easily. I said, who do the firearms belong to?…He said, Sandra my wife. I said, you realise you shouldn’t have fired the rifle?…He said, Yes, I was protecting my life and property. (I never said property.) He made it quite clear, meaning Britton, his intention, I was fearful of my life. At that stage we returned to the Wanganui Police Station where a telephone was available to Mr. Van Der Lubbe to ring his Council Mr. Brosnahan. He telephoned his office and spoke to Mr. Brosnahan’s secretary who said Mr. Brosnahan was unavailable. Regarding Mr. Van Der Lubbe, I, at 11.25 hours spoke to Mr. Van Der Lubbe and informed him that he would be charged with reckless discharge of a firearm, possession of a firearm without a licence. I asked him to read the notes (my statement not his notes) I had taken and if he had anything else to add and he said he did. I said, what else do you want to say? He said, there is one thing, before Donald walked up the Valley he threw the pieces of wood that he had used to lift the gate off its hinges into the creek, the one almost opposite the gate, the other 50 to 60 meters up the road into a creek/ditch. When he returned he went into the ditch again for about 1 minute. I believe he was trying to hide the wood under the weeds. I showed the police the position of the wood and the ground markings at the gate and the mud markings left on the gate bottom rail which I believe Donald Britton left there when he pushed the gate back on to its hinges. I believe Britton was trying to cover up the fact that he came up the drive after having forced open the gate. At this stage I asked Mr. Van Der Lubbe to sign his notes (statement) but he refused until he had spoken to a lawyer. I have got 0215 but it 1415, 2.15 in the afternoon, Mr. Van Der Lubbe visited by Jane Hunter, a solicitor, I believe was employed by Mr. Brosnahan and spoke to and read the notes (statement) and at the conclusion of that there was one further addition to the statement (he got it right at last) from page 3, lines 2 and 3 that he made. I said, you want to clarify part of your statement? He said, I believe when Britton said, nighttime is my prerogative (that’s when I do things) that he was going to come back at night to carry out his death threats. At that stage he signed his statement as being a true and correct (I didn’t notice the ‘property’ then) record and I witnessed and I witnessed it as having taken the notes and it concluded at 14.20 or 2.20 pm. I was referring to my notebook before, the accused signed each page of the statement individually with his initials and on the last page he signed it in full with his signature. That is part of a police notebook containing the statement by the accused. I produce that copy to the Court.
Cross-Examination by Mr. Brosnahan.
Constable, you were the officer in charge of this case weren’t you?…I was arresting officer. And O in C since?…Yes. And can you confirm from your file that on the morning of the 19th Mrs. Van Der Lubbe delivered a copy of the trespass notice to the Wanganui police?…She delivered it to Constable McGillivray at the Wanganui East Police Station after she had left Britton’s residence.
Ian John Kerrisk. (sworn)
My full name is Ian John Kerrisk. I am a Detective stationed at Wanganui and attached to the CIB. I am a member of the Wanganui Armed Offenders Squad and have been a member of the squad since 1984 and I am a senior squad member. About 9.15am on Tuesday May 19 the squad was mobilised to attend a shooting incident at the Van Der Lubbe property in Makirikiri Valley. I travelled to the scene in the lead AOS vehicle with Constables Maniapoto and Bridgland. Upon arrival at the Van Der Lubbe property AOS staff took up immediate cordon positions. The occupant of the house was then called out of the house, down his driveway to the roadway. This occurred without incident. I then directed Constable Walker of the Crime Control Unit to speak with this person. I recognise this person as Mr. Jack Van Der Lubbe and identify him. (Witness identifies defendant sitting behind council) Along with Constable Maniapoto I approached the house entering it through the open ranch slider door. I secured the premises ensuring no other persons were present. I located three firearms at the address. Apart from ensuring these firearms were unloaded I left them in situ. I then remained at the scene until I handed control to Sergeant Roe. By in situ I mean I left them where I had seen them.
Cross-examination by Mr. Brosnahan.
Detective you said that there was the movement of the accused from the house to the roadway at your request without incident?…Yes. Is it fair to say Mr. Van Der Lubbe was entirely co-operative with the police throughout this incident?…In my view he was, yes.
Brent Stewart Gray. (sworn)
My full name is Brent Stewart Gray. I am a Police Constable stationed at Wanganui. On 19 May I was working an early shift at the Wanganui Police Station in Bell Street as the operator in the Control Room. At 9.07 I received a 111 call from the defendant Mr. Jack Van Der Lubbe (identification admitted by accused). I now seek permission of the Court to refer to notes made at the time.
Mr. Brosnahan. I have no objection.
At 9.07 hours I received a 111 call from a male person saying Donald Britton is coming into his property to break in. He (Britton) was in an unstable state. I was able to obtain the callers phone number being 3425721 a Mr. Jack Van Der Lubbe. I said he is in an unstable state and I meant he was very erratic, that is the caller. Jack Van Der Lubbe lives at Makirikiri Valley, Upokongaro. He told me Britton had sold his property to Mr. Van Der Lubbe but now he wanted it back. Mr. Van Der Lubbe’s wife Sandra phoned Jack and said Britton was on his way out. He had thrown stones and threatened to kill her. Mr. Van Der Lubbe then told me that Britton has a firearm; he’s taken the gate off its hinges. I asked him could he see the firearm?…He replied, no I can’t see it but he knows Britton carries one in his vehicle. He said Britton has a red Subaru ute with no canopy on it. It was parked outside the address on the roadside. Mr. Van Der Lubbe then advised me that Britton was coming up the drive and he had to go, he had to defend himself. He said that to me three times and that is when the phone went dead. At 9.17 am Mr. Van Der Lubbe was back on the phone. He told me he had fired 2 shots from his rifle at the vehicle and he told me his rifle was a .243. After he fired the shots he told Britton to go, to leave the property. He then told me that Britton has a .222 rifle and that he threatened to kill Van Der Lubbe. He also told me that Britton was accompanied by a Mr. Tom Knox. As Mr. Britton and Mr. Knox left they put the gate back on the hinges and went back out to their vehicle. Britton threw a hunk of 4×2 over the fence into a creek.
Mr. Van Der Lubbe said he used this wood to take the gate off the hinges. He then told me that Britton said to him he’ll be back tonight, that’s when he does things. Mr. Van Der Lubbe said that Britton got out of his car and stopped a metallic blue old model Holden and talked to the passengers. He was waving his arms around and pointing at Mr. Van Der Lubbe’s address. Knox and Britton got into the vehicle and the vehicle headed up the valley.
Cross-examination by Mr. Brosnahan.
Constable, It’s normal practice isn’t it to have a tape recorder monitoring these emergency calls?…Yes. And the call you have given evidence about was an emergency 111 call wasn’t it?…Yes. You said that the caller was clearly agitated?…Yes. Frightened?…Yes. (And if the 111 tape recording hadn’t been “lost” then we’d all be able to see how much Constable Gray got wrong and left out of his notes.)
Judge Laing.
He didn’t say that.
Mr. Brosnahan again.
The best way of illustrating that would be to play the tape wouldn’t it Constable?…Yes. Are you able to do that?…No. Have we lost the tape?…(Gasps from the Jury.) We have lost the recording. (Wiped as opposed to saved and then physically lost and, heaven forbid, possibly found again.) Lost the recording?…Yes

4

It is fair to say Constable isn’t it that it is difficult to reconstruct a persons fear and panic as you feel it coming across an emergency 111 call such as this?…It is hard to explain. (No it isn’t, all you have to say is, he sounded like he was shitting himself.) But that is what you were faced with that day weren’t you Constable, a man beside himself with fear?…Yes.
(Then good old unbiased Judge Laing sticks his oar in again.)
Mr. Brosnahan, he is saying that’s how it appeared to be and that’s how the accused was. He can’t say the accused was beside himself because he may be a good actor. (After that little gem one of the prison officers flanking me during the trial leaned over to me and said “He doesn’t like you Jack.”) Always choose a Jury trial as opposed to Judge alone.
Mr. Brosnahan again.
That is how it appeared to you Constable?…Yes. When the call started it was at a stage from what you were being told of people breaking into the property?…Yes. And the caller Mr. Van Der Lubbe made it plain to you that the property had been locked and was being broken into?…Yes. By two people jemmying the gate off its hinges?…Yes. And as that activity, the getting the gate off the hinges got more developed, did it appear to you that the panic of the caller also heightened?…Yes. Do you recall him saying that earlier that morning Britton had threatened to kill his wife?…Mr. Van Der Lubbe said that yes. Said that to you?…Yes. And made it plain that although he couldn’t see a firearm he believed Britton had one because Britton carried one in the vehicle?…That is right. You have given evidence that Mr. Van Der Lubbe said on a number of occasions, “I’m going to have to go and defend myself?…Yes. And repeated that a number of times?…Yes. Do you recall him saying, what can I do to defend myself?…No. Your transcript of course was dictated some time later after the call was concluded wasn’t it?…Directly after the call was concluded. And it is at best a paraphrasing of the exchange between you and the caller Mr. Van Der Lubbe?…Yes. Do you accept that he could have said, what can I do to defend myself?…He could have said that. And could you have said, lock the house. I could have said that yes. Do you recall any comment from him to the intent that locking the house wont be enough they have just got through a locked gate?…He gave that impression. (He must have said, “lock the house” then.) When you first took the call and Mr. Van Der Lubbe told you that Donald Britton was coming into his place was he virtually stuck on the words he’s coming to get me and repeated those to you?…I can’t remember. Do you recall giving evidence at the lower hearing?…Would it help you memory to look at the notes of that evidence to refresh your memory?…Yes. Could the witness be shown page 15 of the deposition evidence at marker 25.
Judge Laing.
Go before and well after 25 and see just what it is you were answering.
Mr. Brosnahan continues.
Constable, my question to you was when the call came to you and Mr. Van Der Lubbe said that Britton’s coming into my place, he’s coming to get me, he has a gun, did it appear to you that he was virtually stuck on those words?…Yes. And that is the recollection of the call as it came to you with the aid of refreshing your memory?…Yes.
These answers show why a tape recording is imperative for the real truth to be known. If Gray had lied on the stand, as he was asked to do, (“I wasn’t going to lie for anyone.”) I would have been up shit creek.
In summary Constable, your impression of the call as it came to you was of a person fearful for his life?…Yes. He appeared desperate as to what he could do to protect himself and his life?…Yes. And telling you as his lifeline as it were that he had to go and defend himself?…Yes. Although this person, Constable, had rung the police on the emergency number because of the timeframe of people breaking in the gate and coming up the drive etc. there was nothing the police could actually do to help was there?…Not at that time.
Judge Laing again.
Constable, is it your evidence that in the telephone call you first received, the caller said to you he’s coming to get me, he has a gun?…No. My first noting was Donald Britton is trying to break into my place, he has a firearm.
Jacobus Johannes Nicolaas Van Der Lubbe. (sworn)
My full name is Jacobus Johannes Nicolaas Van Der Lubbe. I reside in Makirikiri Valley, Wanganui with my wife and two children. My wife entered into an agreement with Donald Britton for the purchase of that property in October last year and was due to settle in January I think. As settlement approached I became aware that Mr. Britton was refusing to settle and had changed his mind about selling. There were various exchanges between lawyers acting for the parties and eventually proceedings were issued in the High Court at Wanganui to seek orders for the sale to go ahead. In March, just before the Court was due to hear those matters Mr. Britton decided he would settle. I took possession and he was paid the money. On 18 May of this year, I was at my home on the property that day, and there was a visit from Mr. Britton and a discussion about a lease. We discussed it and I told him it wasn’t suitable as it was worded and it would have to be redrafted. His reaction to that was he said its cost me too much money already just cross out what you don’t like and I said, no we can’t do that it is a legal document and it has to be done properly.
After that conversation about the lease finished and Mr. Britton decided to leave and I followed him down to the gateway to lock it behind him and he went through it and he came out of his vehicle and I asked him, who was that chap you had with you on Sunday afternoon. That related to Sunday afternoon when he came up on his motorbike with some guy on the back and Tom Knox was on another motorbike and I was riding my horse on the Valley. (road) I said, who was that chap and Donald said, did you notice anything about him and I said yea, every time I looked at him he smiled at me. I think I said is he all right because I thought it was a bit strange that we hadn’t been introduced and he just kept smiling at me. After that not a great deal was said. It was discussed about the horse a little bit and they rode off on the motorbikes. In response to my question, who was the guy with them Donald said, that joker has been to Vietnam and done two tours of duty, that’s 400 days, that is twice as many or twice as long as the average soldier does. He says he has flashbacks. He’s killed lots of people and wouldn’t mind killing some more and would probably enjoy doing so. He then said that he had tested this fellow’s nerve. (By taking him through the Durie Hill tunnel at 60 miles an hour on the back of his motorbike and “he didn’t even blink.” How Britton could see the non-blink sitting on the front will forever remain a mystery.) He said to me, he walked up to the gate and he said to me, he poked his fingers through the wire like this, (and said,) if you don’t give me the lease within two weeks I’m going to take drastic action, you see what happens. I said, are you threatening me again? Then I asked him if he was all right. He said, why? (Because you appear to be flipping out, again.) I then went back up to the house after that conversation. After that conversation with Mr. Britton I was feeling physically ill. (The nut did have a rifle in his car.) When I got back up to the house I told Sandra about it. A decision was made and that related to a trespass notice. I typed one up. It was arranged that Sandra would deliver it to Britton when she took the boys to school the next day. I wanted to stop Britton coming up to my property at that stage because of what he said the previous night; I couldn’t take the stress of his visits. The next morning my wife went off with the trespass notice and at some stage I made a phone call to try and find out what was going on. I phoned my brother-in-law’s place because that’s where they were going to do the washing. I planed on speaking to Sandra. Daniel answered the phone and I asked him if Sandra served the trespass notice and he told me what had happened. He said, Donald threatened mum with an iron bar and threatened to kill her and as they drove away he threw a rock and hit the back of the car. As I was having this discussion with my son, Britton arrived in his vehicle at the road entrance to my property. I then said to Daniel, I’ve got to hang up Daniel, and ring the cops. I then dialed 111. I confirm that the situation was as Constable Gray outlined it in his evidence. Down at the front gate I could see Britton trying to lever the gate off its hinges. The gate was padlocked. Britton climbed over the gate and got some pieces of 4×2 and put one like that, and the other one like that he made a lever with them and he jumped on them and they broke and he came over again and got a long length of 8×2 and used it the same way and jumped on it again and the gate flew off. At that stage I was panicking from what Daniel had told me and Britton’s threats the previous night. I believed he had a firearm in the vehicle and he had threatened to kill me and I had doubts about his mental state at that time. Once he got the gate off its hinges I saw the car start to move up the hill and I was still speaking to the Constable. I was speaking to him constantly. I said to him, what can I do and the Constable said, lock the house up and I said, I can’t remember exactly what I said, but I couldn’t lock the house up because there is no floor in the entrance porch and so the house wasn’t lockable and then I was just sort of overcome. Something just gripped me. My heart started racing faster and I just went cold. I was concerned about the fact that he had broken in and he was coming. I thought my time had come. I went and got the rifle spoken of in evidence and I asked the policeman, can I defend myself, and he didn’t answer, and I said, I have to go and defend myself and I put the phone down. I didn’t hang it up I just put it aside. I went to the bedroom and grabbed the gun and went outside a fired the 2 shots spoken of in evidence. I have heard where Mr. Knox and Mr. Britton said the vehicle was at the time of the shots and I accept that is pretty accurate. When I fired the shots I wanted to keep them away and stop the vehicle and keep him at a distance. I didn’t want him to be able to use the rifle on me. I heard Mr. Knox saying I kept telling them to get off the property and that I did that and saying if they didn’t I’d shoot the vehicle up. Once the vehicle stopped after the second shot I didn’t fire anymore. When Britton got out of the vehicle and came round the front of it I had a full view of him. The occupants of the Subaru hopped out and examined the damage and then they freewheeled down the drive and I went back to the phone. The Constable has given evidence that I said to him that Britton had threatened to shoot me with a .222 and that is the case. I believed that if I hadn’t stopped Britton and his friend coming up to my house I would have been shot. I fired the shots to prevent that happening.
(Why Brosnahan didn’t ask me about Britton’s Ballance St. threats when I gave evidence I’ll never know, he even failed to produce the written statement that Carole Smith made that stated that Britton had admitted to her that he had threatened to “blow our whole family away at Ballance St.” He also failed to expose the perjury of Britton’s denial that he was facing a police charge of making a threat to kill during the period that he contracted to sell his farm.)
Cross-examination Mr. Ross.
Mr. Van Der Lubbe, how long have you known Mr. Britton?..Since I was 14. How old are you Mr. Van Der Lubbe?…41 no 42 now. So you have known Mr. Britton about 28 years?…Yes. And during that period you have spent quite a lot of time with Mr. Britton haven’t you?…In the first 5 years I saw him off and on. What about in the last few years?…No hardly ever. You have been hunting with him?…Yes. Is it fair to say that you and he enjoyed the same sort of lifestyle?…We both like hunting. Would you describe yourself as something of a volatile person?…No, not at all. (It doesn’t pay to be volatile when you’re built like a jockey’s whip.) You would describe Mr. Britton as being volatile though wouldn’t you?…Definitely yes. There was really quite some aggravation over the purchase of this property wasn’t there?…Aggravation? Mr. Britton attempted to get out of the deal. When you purchased the property and the deal was signed you put some pressure on Mr. Britton to speed it up didn’t you?…No. Did you go and visit him taking your father and a typewriter?…Yes. Had he not told you to leave it for a few days?…No So he invited you up?…Yes, I came down from Whangarei. Your arguments over the sale of this property went on for some months didn’t it?…There were letters exchanged between lawyers but no verbal arguments between myself and Britton until 7 January. Until 7 January this year?…Yes. And did he want you to forget the sale?…Yes. He didn’t threaten you at that stage though did he?…Yes he did. He did?…Yes. Did you go to the police about the threat?…7 days later I did. When did you next see him after that?…19 March. So nothing happened as a result of that threat?…No, the police didn’t do anything about it. Can you tell us what the nature of this threat was?…He said, If you take my land off me you’ll die on the place, you and your family will die on the place. And that was said in January of this year?…January 7th yes. And the next time you saw him was?…19 March. And is it fair to say at that stage relations between you were reasonably cordial?…They were business like. Can you tell us when settlement took place?…That day. He signed the transfer that day and the cheque was handed over that day. You entered into an arrangement with him then as regards some property and some gear he wanted to leave on the farm?…Yes. And you were quite happy for him to leave that gear on the property?…Happy isn’t the right word. I said he could to facilitate the easy transfer.
Did he occasionally come and remove some property?…At first he took property away and then it tapered off to nothing after a time. Turning to this person who you said Mr. Britton didn’t introduce you to, you are not talking about Mr. Knox are you?…No. Now on the evening of the 18th during that discussion with Mr. Britton did you discuss the removal of his further gear on the farm?…Yes. Did that include deer?…No. And did Mr. Britton say that he was going to come and get it the next day?…Yes. In that conversation he didn’t directly threaten you did he?…He said, If you don’t give me that lease within 2 weeks you see what happens. I took that to be a physical threat, his references to Vietnam veterans and the killing of lots of people didn’t lead me to believe it was some sort of legal action. But he’d threatened you previously even more directly than that hadn’t he?…Yes. Did you report that threat to the police that you felt…The earlier threat? No the one on the evening of the eighteenth….Yes I rang the police that evening. Who did you talk to?…I don’t know the Constable’s name. I asked for Constable McGillivray but he wasn’t on duty (easily checked) and I explained to the Constable who was on the phone. Did you advise the police what you intended to do?…No, no. Did you make an emergency call to the station that evening?…I don’t think it was no, the threat wasn’t immediate then I used the watch-house number I think. You said the threat wasn’t immediate then?…He said to do something drastic within 2 weeks. The next morning when you were having your conversation with Daniel. Daniel never said that Britton had threatened you did he?…He said he had threatened to kill mum, his mum. He didn’t say that Britton had threatened to do any harm to you did he?…No. And when you rang the police the first time you never said that Britton had threatened to kill you did you?…That morning? Yes. Yes, I said, he had threatened to shoot me. No, that was the second time?…I only made one call, I never hung it up, I just put the phone aside, it was all one call. In the first half of that call before you went outside and fired the shots you didn’t tell the police Constable that Britton had threatened to kill you did you?…No he hadn’t done it at that stage. So at that stage before you went outside he hadn’t threatened to kill you?…He had previously but on that morning, no. So the only time he directly threatened you was in January of this year is that what you are saying?…That was a direct threat and there was an implied threat the night before. So at the time you went outside you felt there was an implied threat to kill you?…I felt there was a direct threat. Is that a result of the conversation you had in January?…No it was the conversation I had with my son and the fact that Britton was breaking in and the fact that he said insane things the night before. (I didn’t fear Knox or the “mass killer” Massey, I feared Britton’s apparent insanity.)
So that was the conclusion you had reached from what your son had said and Britton had said?…Yes. But you would accept that neither your son or Britton on the 18th or 19th had indicated a direct intention to kill you?…I felt extremely threatened. I’m not asking you how you felt, I am asking you what Mr. Britton and your son had said to you?…Before I went outside Daniel told me that he had threatened to kill mum, he was really mad, he had threatened her with an iron bar, he had thrown a stone at the car, a rock at the car. Words were not required to indicate to me and make me believe that his intention was to harm me. So you believe he intended to harm you?…Yes, definitely yes. But you would accept that those words were not spoken or words to that effect that you were to be killed were not spoken by Mr. Britton?…Up until the time I went out of the kitchen Britton had not directly threatened me that morning apart from physical action, words were not used. In reaction to all this you decided to make a pre-emptive strike so to speak?…A defensive action. A defensive action?…Yes. Could you see who was in the vehicle when you fired the shots?…Yes, I could see that Donald was in it and I think I recall identifying Tom Knox. So you could see that Mr. Knox was in the vehicle?…If memory serves me correct yes. Did you know Mr. Knox?…No not really, I had only met him a couple of times. And how had you met him?…He came up to get stuff with Donald. He came up with Mr. Britton?…Yes. So you thought they were both coming up to kill you?…No I though Donald was. No I thought Donald was?…Donald had said the night before that Tom was his puppet and would do anything for him. You told Mr. Brosnahan what you have just told the Court?…That Tom was his puppet? Yes. I believe I have yes. Mr. Britton didn’t yell out anything before you fired the shots at the car did he?…Yes he leaned out the window and said, I’m going to put a bullet in your head from my .222. And how far away was he when he yelled that out?…About 30 meters up from the gate. And how far away from the house?…About 110 meters approximately. So you are saying you heard Mr. Britton yell out from 110 meters?…Yes. When he was driving a car up a gravel road?…Yes. And is that when you decided that you might take a shot at the car to try and stop him?…I can’t say for sure, I was in a panic, I had become overcome with fear and my brain slipped into overdrive, so I can’t say when that decision was made. You actually went outside with the gun didn’t you?…My intention was to stop the vehicle and prevent Britton using his rifle against me. So you took 2 live bullets out with you in the gun or was it already loaded?…No, it wasn’t loaded. No, Mr. Van Der Lubbe, when you saw Mr. Britton at your gate did you ever think of leaving the house out the back door and taking off?..I can’t really remember what I thought at the time, I was speaking to the policeman all the time describing what was happening. Events simply overtook me and that is the way it went. So are you saying you didn’t think of trying to get away?…I can’t remember what I thought, I was just gripped when I saw him breaking in and I didn’t think straight anymore. (The cop didn’t suggest I make a run for it either, quite the opposite in fact.) You had a number of firearms in the house didn’t you?…Yes. They didn’t belong to you?…They belonged to your wife is that correct?…Three of them belonged to my wife and one was my fathers. Can you recall which 3 belonged to your wife?…The .22, the slug gun, the air rifle and the .243. Your wife is keen on rifles?…You could say that, yes. They are a tool used on the farm for pest eradication and such like. You don’t have a gun licence do you?…No. (He so much wanted to bring up the crap contained in my files but hinting about my firearms licence status was all he could do.) Now you know Mr. Britton reasonably well don’t you?…Yes. And you know that Mr. Britton is prone to shoot off at the mouth don’t you?..Among other things yes. Do you know in your experience that he talks a lot?…He talks an extreme amount. He talks an extreme amount?…Yes. (And the cops had all the guns, even the slug gun, lined up in Court as though I had used them all.)
Daniel Troy Van Der Lubbe.
My full name is Daniel Troy Van Der Lubbe. (16) I live in Makirikiri Valley with my father Jack and my mother Sandra. On 19 May this year I was going to school with my mother and she went to a property in Willis Street where Mr. Britton lived and I remember that day. I know my mother went there to deliver a trespass notice to Donald Britton. I was in the car outside his place. My mother went into the property. I got out of the car for a while. I saw my mother returning towards the car. Donald was following her. I saw Donald pick up an iron bar off his ute. It was a fence standard with a curly bit at the end of it. He picked that up. When he picked that up mum was getting around by our car on the road. Donald started waving it around in the air. I could hear him say something. He said, I’ll get you and he threatened to kill mum. He said, I’ll get you and you should be scared of me. Mum was then starting to hop in our car. I was in the passengers seat in the front of the car. I had got back into the car. I had got back into the car before my mother and Mr. Britton became visible to me. The car then drove off. As we drove off he threw a rock at the car. I saw who threw the rock. It was Donald Britton. I know him; he is someone who has been to my place. Once I left the Willis Street address I went to my uncle’s place. I went to the Police Station actually. I went to the Police Station first I think and then to my uncles place. While I was at my uncle’s place I was aware of a phone call. I spoke on the phone to my father.
I said to my father that Donald had threatened to kill my mother and waved an iron bar at her and as we were leaving he threw a rock at the car and Donald was very angry. While I was having that conversation with my father my mother was in the lounge of Andrew’s place. Donald arrived at our place and that interrupted the phone call. My father told me that when I was on the phone. At that time my father told me he was at the gate and to get off the phone so he could ring the police. When he said that to me and told me Britton had arrived, my father sounded scared. (At this point the same one of the two Prison Officers who the Prosecution had for, he must be a bad bastard effect, placed on either side of me leaned over to me and said “we don’t want you with us” and “the wrong person is on trial.”)
Cross-examination by Mr. Ross.
So you heard Donald Britton say to your mother I’ll get you and you should be scarred of me?…Yes. And you took that as a threat to kill her?…Yes because he waved an iron bar as he said it. He didn’t say I’ll kill you to your mother?…No not in those words. Do you know him quite well?…Not very well. You knew you had moved back onto his property?…Yes we had moved to his place. Do you know why you went round to your uncle’s place?…To do some washing. To do some washing?…Yes. You weren’t intending to ring your father up?…No I didn’t think about that. You didn’t think about that?…No. So you were concerned about the threat?..Yes I was. When you went to the Police Station did you go in?…Yes. Did you think at your uncle’s place that you should ring your father?…We just got in the door and the phone went and dad was on the phone.
Re-examination by Mr. Brosnahan.
You made that statement to the police that morning?…In the afternoon, later in the afternoon. You went to the Police Station before you went to your uncles?…Yes. And your mother went in?…Yes. Did you go in then?…Yes. And did you speak to the police then?…Yes but we didn’t make a statement. You just spoke to them and told them what had happened then?…Yes. You went back in the afternoon to the Police Station again is that what you are saying?…Yes.
5

When Tom Knox got out of the ute and showed Britton the bullet hole in the bonnet Britton became ecstatic. He danced around, yahooed and then shouted to me “I’ve got you now, I’ve got you now, you’ve made a fatal mistake. I said to myself , “no you fucken haven’t.” And it was me who was proved right.
6

They missed one.

7

The last thing Britton shouted at me before he got back into the ute to free-wheel it back out of our gate was, “I’ll be back tonight, night-time is my prerogative, that’s when I do things.” So his parting words were another threat. Just shows what a suicidal nut he really is. After he and Knox had put the gate back on its hinges and carefully positioned the ute to fit in with his later “pack of lies” claims that I had shot the ute when it was still outside the gate, he didn’t give a toss about any trespass charge, small price to pay for landing me in it, Britton did a hand stand and walked that way for a few steps. He was a very happy chappy now that his cunning plan to get me in the cart had worked at last. He wasn’t so happy after the jury gave its verdict though. He bawled out Crown prosecutor Ross as being useless and when he reached his ute that was parked across the road from the Court he let out a roar of anger and punched the driver’s door so hard it left a dent.

About 20 minutes after they left the scene of their crime Britton and Knox walked back down the road and Britton went into the creek where he had thrown the 8 by 2 plank. He tried to hide the plank by forcing it down into the mud and weeds with his feet. I could see that as he had his hands on the creek bank and he was bouncing up to his knees in the water. But the plank had floated back up by the time I took the police to the spot. He was in there for about a minute and then he got out of the creek he did some more handstands and then he and Knox walked back up the road. As you saw, the reason he gave in Court for going back to and getting in the creek was, “I wanted to get some watercress.” Anybody that is mental enough to say something like that in public and expect it to be believed by a jury and who threatens to kill should not expect a red carpet when he breaks into the property of the very people he has threatened to kill.
There was any amount of cops watching that trial. They all heard what Britton had said. They all knew he was a liar and obviously mental but did that make them change their criminal attitude towards us? No the continued to support him in his campaign of intimidation.
*

On criminal justice Dr Brash’s musings yesterday were entirely within Act’s longstanding principles. I made self defence a high priority as
Act Justice Spokesman. Since then nothing has changed in the Police attitude, at least as far as they have officially acknowledged, though I thought there might have been some thaw in their determination to maintain their monopoly on permitted violence. The law does need some crucial changes. I drafted a number.

http://www.stephenfranks.co.nz/
Self-defence – Why is Police Policy Protecting Criminals?
Self Defence
Dr Lech Beltowski
The recent claim by Northland Federated Farmers executive member Bill Guest that farmers in Northland’s isolated areas need to keep loaded weapon for security has drawn the usual negative response from local police inspector Paul Carpenter. Unfortunately his comments demonstrate once again that -at least in Northland- police no longer have any clear understanding of where their responsibilities finish and those of law-abiding citizens begin.
Even if the irony of having an article entitled “Police; loaded guns for safety silly idea” just above an article “Raiders hit migrant workers” was insufficient to raise doubts about the official police position, simply rewording the reported comment by Inspector Paul Carpenter to “Police claim unloaded guns offer better safety” should surely remove all doubt.
If one wished to further test the hypocrisy of the current police position, one only has to ask what the likely police (and Police Association) response would be to any call for police to be disarmed, forced to carry unloaded guns only or made to keep their guns unloaded and all ammunition in a seperate locked box until a clearly defined emergency arises. Yet those are precisely the rules under which they expect everybody else to operate. Small wonder then, that it’s the violent criminals who are winning.
As highly paid servants of the public, police do have an important role to play in maintaining law and order. However, there have always been practical limitations to what police can actually do for us. Such limitations have long been recognised in as much as police operate under a general collective obligation, a “duty of care” to society but without any strict legal obligation to guarantee the safety of individual citizens.
In effect, we have the absurd and totally improper situation of having the police -the very people who cannot be held legally accountable for failing to protect us- claiming the right to decide what we can and cannot do to protect ourselves and our families.
Northland Federated Farmers are certainly correct in their claim that drug- related violence and murder has become common in the area. They are also well within the law and within their rights in calling for farmers -especially those in isolated areas- to take whatever action is necessary to protect their families and property.
A local police force critical of such actions, seemingly happy to accept as inevitable the socially damaging actions of criminals but uncomfortable with the prudent responses of law-abiding taxpayers, must surely have reached rock bottom. When one then realises that farmers are only responding to a problem the police have been totally unable to deal with effectively for years, then it is abundantly clear that Northland police have no idea of their obligations or role. The throw-away comment by Inspector Carpenter that ” there was a lot police could do to protect residents of remote areas” demands only one question- why haven’t you been doing it?
Contrary to what police so often imply, self-defence is certainly legal. Section 48 of the NZ Crimes Act states that “Everyone 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”.
This is exactly the same law used by police to justify them having the right to carry and use firearms for their own protection yet there is nothing in the Act which gives police special rights over and above those of the citizen. Clearly EVERYONE, no matter what their job, no matter who they are, has the same right to self defence under New Zealand law as the police have. What is missing of course is the level playing field, the ability to use equal means. This, however, is purely due to how police policy currently interprets the law to disadvantage the law-abiding citizen. What seems to have been forgotten is that internal police policies do not have any real legal status, so the use of policy to justify restricting a legal right is almost certainly illegal. Possibly the Council for Civil Liberties might like to take this matter up.
Be that as it may, it is high time police throughout New Zealand were reminded that they do not yet have any special right to better self-defence than the people they are sworn to serve and that, no matter what their personal feelings on the matter, our common law right of self-defence is precisely that – a legally enforceable right.
Those who have advised police in their current policy on self-defence appear to have conveniently forgotten the basics of both common and constitutional law. The famous British Constitutional historian Sir William Blackstone, in his famous book ” Commentaries on the laws of England” (first published in 1765) listed three primary rights -personal security, personal liberty and private property- which he regarded as natural rights. The specific right of individual self-defence he further regarded as a primary law of nature, a natural right that cannot be taken away from individuals by any of the laws of society. Clearly, Sir William had not reckoned with the present hierarchy of the New Zealand police nor with parliaments seemingly more interested in stripping away or restricting the rights of law-abiding citizens than in protecting them.
Since even the most junior police trainee understands that most crimes occur when police are not around, it hardly comes as a surprise to find that 99.9% of police work is reactive and begins well after the crime has been committed. Police are weekly unable to prevent hundreds of violent crimes and very rarely are they able to arrive in time to prevent a crime from being completed.
This fact must surely dash the hopes of those still naive enough to believe the often repeated claim that police can protect them, since it is somewhat unrealistic to expect help from someone who is not yet physically there. One problem may be that police now believe their own propaganda.
However, surely the most fundamental problem with the current police policy on self-defence is simply that it is the victim who always arrives at the crime scene first, well before the police. Yet, if the current police policy on self defence is any indication, police must believe that disarming victims and thereby making them more vulnerable to violent crime equates with crime control. It is high time senior police officers were made to explain how giving extra legal powers, pepper sprays, personal radios and self-defence firearms only to the people who always arrive last at the crime scene can save innocent lives or be a sensible and effective crime fighting strategy.
It was Sir Robert Peel, the founding father of modern policing who, over a century ago clearly defined the separate if overlapping roles of both the police and the law-abiding citizen when he said “the police are the people and the people are the police.”
He understood, even if his modern-day successors choose not to, that police by themselves cannot hope to deal effectively with crime and that the most effective way to minimise opportunity for criminals and thereby reduce crime is to ensure both the citizen and the police officer work together as equals, each having an equal right to react to criminal activity as soon as they see it occurring.
Sadly, in New Zealand two decades of a dangerously illogical and probably illegal police policy on self defence has ensured this is no longer the case. After suffering years of rising violent crime in silence, farmers in Northland have finally said “enough is enough”. For all our sakes we should support them.
———————————————————————————————————————–
28/07/2006
NewstalkZB
Police say it is too early to charge anyone over yesterday’s shooting of a man in a Penrose gun shop.
The shop owner says his son shot a 29-year-old man who had entered the store armed with a machete. Detective Senior Sergeant Simon Scott says the wounded man is in a stable condition but under guard in Auckland Hospital.
Police are waiting for doctors to give them the go-ahead to speak to the man.
Mr Scott says they need to conduct a full investigation and evaluate all the evidence before they are in a position to determine what, if any, charges are laid.
Police are going through security surveillance footage of the incident and interviewing witnesses.
Self Defence?
Thirty-three-year-old Gregory Carvell, who is understood to have fired the gun, has been speaking with the police. His father and owner of the store, Ray Carvell, has told the media that his son acted in self defence.
The Civil Liberties Council is cautioning police not to rush into prosecuting Gregory Carvell. Spokesman Barry Wilson says in similar cases in the past, police have laid charges and the case has gone to court. He says police have a greater responsibility to examine the evidence before them.
Mr Wilson says if police think there is any reasonable evidence pointing towards the man acting in self defence, they should not prosecute.
SELF DEFENCE LAW
_________________________________________________________

A man who died after an alleged botched van theft in West Auckland has been named as Jason Murray.

Murray, 36, from Te Atatū died after an altercation with the person whose vehicle he was allegedly trying to steal on Sunday.

Waitemata CIB detective senior sergeant Kim Libby said police believed the van owner was acting in self defence.

A post mortem would take place on Wednesday and Murray’s death had been referred to the Coroner, Libby said.

Enquiries into the incident were ongoing, Libby said.

Police believe Murray and a second person were attempting to break into a van at a property on Te Atatū Rd before an altercation took place between himself and the owner of the van.

“The second individual fled the scene and we are still trying to locate them. We urge them to come forward and speak with us,” Libby said.

“As a result of our enquiries up to this point, we believe that Mr Murray has died as a result of injuries sustained during this altercation.”

Libby said the result was a “tragic outcome” and  support had been provided to Murray’s family.

“The van owner has been fully cooperative with police and we have spoken with him as part of our investigation, while we have also spoken with a number of witnesses.

“Enquiries to date lead Police to believe that his actions were in self-defence. He is understandably distraught and we are ensuring that he is provided with support and welfare at this time.”

Police asked anyone with information about the incident or the second person who fled the scene to contact Waitematā Crime Squad on 09 839 0697 or Crimestoppers anonymously on 0800 555 111.

I bet the van owner has never made a complaint against a cop.