Common And Aggravated Assaults (interpersonal Violence Offences)

Question 1

Why do we criminalise interpersonal violence offences?

Answer 1

Should victim consent be allowed for bodily harm → examples where we do this in real life? → ear piercing, tattoo, rough sex???

Protecting people’s bodily integrity → we have the right to determine who comes into contact with our body, who and what and how things happen, and who with.

Escalation → at the heart of common assault (lowest level), even where no bodily injury and harm → its unwanted → lack of consent makes it unlawful.

Law protecting bodily autonomy →

People who are unable to self determine or uphold their own bodily integrity → so creates boundaries over how we can interact, and protects vulnerable people.

We determine the boundaries.

Can be a protective factor → too risky? → but in NZ we have a lot of freedom.

UK takes a more paternalistic approach. → limits and boundaries.

Can we agree to have bodily harm against us? → yes surgeries, sport (boxing, rugby), experiments or tests. Tattoos, piercings, rough sex???

Law prohibits this kind of behaviour, but in circumstances can be allowed to agree to it. → frames the offences and defences in this module.

Question 2

Organisation of interpersonal violence offences:

Answer 2

•Section 196 – common assault (no harm – unwanted touching)
•Aggravated assaults – common assault + aggravating element (ss 192-194, 194A, 202C)
•Crimes of interpersonal violence (non-fatal) that are not built on an assault – eg ss 188-189
–Degrees of harm: actual bodily harm, grievous bodily harm
–Technical types of harm (not measured by degree of harm): eg wounding, stupefying, maiming, disfiguring

Lowest level → common assault → specific type of offending → can be any kind of unwanted touching → no need for violence or harm being caused

Then a group of offences called aggravated assaults → at their core have an assault (common assault) → then aggravating features which make them more serious → for example with a weapon → more serious.

Or if assault a child → status of child makes the assault more serious (aggravated assault).

Some offences dont have at their core an assault → but are a range of behaviour judged by the type of harm → or degree of harm → is it GBH or an injury or Actual bodily harm (which is less).

Three types of interpersonal → assault (common assault) , aggravated assaults, and then offences not built on an assault (non fatal, non sexual).

Look at the lower level → common assault → provided for in section 196 of the CA.

Question 3

Defences to interpersonal violence
(non-fatal; non-sexual) offences:

Answer 3

•Defence of victim consent
•Doctrine of common intercourse (arguably derives from the doctrine of implied consent)
•Domestic discipline

Defences above.

Domestic discipline → in relation to disciplining children (next week).

Victim consent → three cases (on tallis), Lee, Barker, and asonnar. →

Question 4

Common assault:

Answer 4

Section 196
Everyone is liable to imprisonment for a term not exceeding one year who assaults any other person.

Context of 196 → means a common assault. → but 196 does not define an assault.

So need to go to section 2. → 195 creates the offence of assault → up to year in prison.

But section 2 tells us what an assault is.

Question 5

Definition of assault in section 2:

Answer 5

•“means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to affect his purpose; and “to assault” has a corresponding meaning.”
•What are the different types of assault in s 2?

Means → important → exclusive or exhaustive defintiion (the word means).

Intentionally applying, attempting to apply force.

Threatening to by an act.

If person making threat has the other to believe that he has the present ability to affect his purpose.

Four different types of assault in section 2 → different types of assault →

Application of force → first type, directly or indirectly → apply force directly or indirectly.

Attempted application of force → second type.

Threatened by act or gesture, but have the present ability to carry it out → third way.

Also a threat by act or gesture, but victim just has reasonable grounds that person is going to carry out threat → fourth.

Question 6

Four types of assault:

Answer 6

•An application of force to another – direct or indirect
•An attempted application of force to another – direct or indirect
•A threat (involving an act or gesture) to apply force to another where the accused has the present ability to apply such force
•A threat (involving an act or gesture) to apply force to another, which causes V to believe on reasonable grounds that the accused has the present ability to apply such force

Apply, attempt, two types of threats.

Applies force directly or indirectly.

Attempted application → may not be successful, dont need contact, the attempt is assault.

Usually attempt is incohate offence → plan and conspire to rob bank, attempted robbery is different from actually doing it. Attempt has own law → but for assault section 2 says where someone is attempting to apply, even if not successful, still an assault.

Attempt is an assault → even though not successfully → attempted application is an assault..

Fact pattern —> if someone swung → section 2 says that attempted is an assault so qualifies for assault.

Then we have a threat to apply, by act or gesture, when actually there.

Or threat where person believes on reasonable grounds that you can effect it.

Last two are sometimes called psychic assaults. → threats.

•Physical assault
•Attempted physical assault
•Psychic assault (threatened applications of force)

Question 7

Physical assault: actus reus issues:

Answer 7

•The meaning of “force”
•“Applying” force
•“The person of another”
•“Directly or indirectly”

What does force mean? → applying it? The person of another? Directly or indirectly?

Question 8

“Force”:

Answer 8

•Can be a mere touching that does not involve any particular degree of physical force or violence: “the fundamental principle, plain and incontestable is that every person’s body is inviolate.” Collins v Wilcock [1984] 1 WLR 1172

When we talk about force not the natural meaning → usually force is violent involving some kind of harm → in section 2 → just means mere touching, not violent, does not have to cause harm. Just one that is a touch, even touching someone’s hand could amount to force for the purpose of s2.

Force does not have dictionary meaning in law —> means mere touching.

•An electrical shock:
Kovalev v Police [2010]
NZAR 30
•Spitting:
Gaunt v Police [2017]
NZCA 590

Force does not mean skin to skin contact always.

Law has developed to have broader sense of applying force → can be an electric shock, or spitting, does not have to be skin to skin contact.

Gaunt v Police → spitting enough to constitute application of force to another.

And Kovalev → husband electric shocks wife.

Question 9

Note: in relation to force element

Answer 9

•The principle of “de minimus non curat lex” – the law does not concern itself with trifles (minor matters/things of insignificance).
•The doctrine of “common intercourse” (discussed in “defences to interpersonal violence offences”).

Principle in law → de minimis non curant lex → no trifling. → matters of a trifling nature, things of insignificance → police not going to prosecute every touch.

Common intercourse → for example in train, lot of touching naturally, part and parcel of what happens when in everday life, but pushing past people aggressively is different → context.

Question 10

“Applying” force:

Answer 10

•“Applying” force suggests that the accused has to be proactive in making the physical connection with the victim’s body.
•Standing in someone’s way or bracing your body to resist them pushing you is not “applying” force: Mitchell v Police (1989) 5 CRNZ 190

Force → level of unwanted touching.

Can be spitting, or shock, not just touching.

Suggests a proactive element → to apply force, shows you are proactively making physical connection with that persons body → if passively not moving it wouldnt amount to applying force.

It is proactive, proactively moving body to make physical connection with other person → Mitchell.

Question 11

“The person of another”:

Answer 11

•Includes hair: DPP v Smith (Michael Ross) [2006] 2 All ER 12
•Likely to include clothing

Cut of ponytail for example → person of another, not body, can include clothing in some cases.

Quite expansive.

Question 12

“Directly or indirectly”

Answer 12

•Indirectly means touching the victim through another medium (an object, a crowd, a substance) or knocking away a support so that they fall.
•An indirect application of
force occurs even though
some step by the victim is
necessary before the force
is applied to their body:
Kovalev v Police [2010]
NZAR 30

Sometimes the accused will be making the physical contact → but does not have to be the body, can be a stick to hit someone, stick is object but still applying force to the person of another.

May use someone else → in law called an innocent agent → use someones hand to hit another.

Kick stool someone sitting on → can be the indirect application of force.

Indirect application of force can also apply if someone has made some step in applying force → Kovalev case → husband wired toaster so that it will give an electrical shock, but she turned it on, he set it up.

Indirect application can be one where person has taken some necessary step to inflict that force upon them.

Grab someone’s arm → victim is taking step to apply force, but done by the accused.

When looking at actual application or attempted → force does not mean violence or harm → more expansive than skin to skin.

And can be done directly or indirectly, can use victim or object etc.

Question 13

Section 2: “psychic assault”:

Answer 13

•“means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to affect his purpose; and “to assault” has a corresponding meaning.”

Section 2 defines assault → threatens by any act to apply force, if have the present ability, or if person causes other person to believe on reasonable grounds that they can carry it out.

Present ability → would usually mean then and now, in the present moment able to carry out threat →

In NZ → we say present ability means “to effect that purpose”, I am able to carry out that threat.

Question 14

Psychic assault: actus reus issues:

Answer 14

•Does the victim need to be aware of the threat?
•Conditional threats
•Can words alone constitute an assault?
–Present ability
–Act or gesture
•Can a reasonable belief be mistaken?

Do they need to be aware of being threatened?

Conditional threat → carry out only if you x or y, or don’t.

Act or gesture → screaming words?

Section 2 → reasonable belief.

Question 15

Victim Awareness:

Answer 15

•Does the victim need to be aware of the threat?
•R v Kerr [1988] 1 NZLR 270

This is about psychic assaults (threats).

Threatening by act or gesture → have the present ability, or reasonable grounds that threat will happen.

Does victim need to be aware of threat?

Kerr → mum sunbathing in garden, fell asleep, man came on to garden and he had an axe in trousers, then when she is sunbathing he pulls trousers down to reveal the axe.

Daughter screams and yells, and mum wakes up.

Issue → whether the mum who is asleep at time person is standing over making threat by act or gesture, whether she had to be aware of that threat?

Defence counsel argued that she wasnt aware and she needed to be → court says no.

Kerr → when talking about person who makes a threat by act or gesture, and present ability to make threat, then victim does not need to be aware of it, he was ready trousers down and axe there. Not being aware does not take away from it being an assault.

If you are there, victim does not need to be aware of it.

In the second type of threat → reasonable grounds to believe that they can→ need to be aware of the threat → otherwise they wouldnt have reasonable grounds for it.

Question 16

Conditional threats:

Answer 16

•Tuberville v Savage (1669) 86 ER 684 - No assault when the condition indicates that there is no intention to carry out the threat.
•On the other hand, a present conditional threat can be an assault where for e.g. the accused, holding a knife, threatens to stab someone if they come a step closer: Police v Greaves [1964] NZLR 295 distinguishing Tuberville v Savage - “A threat in its very nature usually provides the other person with an alternative, unpleasant as it may be.”

Rozsa v Samuels [1969] SASR 205 – Is the condition one that the party doing the threatening has the right to impose (eg in self-defence)? If so, no assault. See also Taka v Police (2001) HC.

Conditional threats → making threat through act or gesture to apply force → but on condition

For example → come one step closer and i will punch → condition.

Someone is saying i will punch you if you come close to me →

Tuberville and Savage → a time when judges used to travel to other place, time of assize, go around to different towns and sit as judges. Makes threat, if this was the time of assize, i would stab you → it wasn’t the time of assize. → so condition of threat but no intention to carry out the threat → Court said no assault → because no intention to carry out threat.

More recently in NZ → 1964. → Police v Greaves → distinguished Tuberville → and said when someone makes a conditional threat, even though the treat is conditional it is still a threat. Threat by its very nature, provides person with unpleasent alternative.

Case where called out to family violence, and meets police at door saying if you come closer i will stab you →

Defence tried to argue that that was a conditional threat → Court said alternative is still unpleasent, still holding knife threating to apply force, if threat can be carried out, the fact that you may not come closer does not nuetralise that threat. → still a threat.

Qualification for the above → if person had a right in law to make it.

Defence that allows to use force if under threat of violence, as long as it is proportionate or reaosnable.

So saying if the defendant has right to impose an assault, then we have a right to do it.

Rosza v Samuels → altercation between two taxi drivers, the defendant had cue jumped and the defendant jumped out and threatened to punch the other taxi driver, the other person says i will stab you in response if you punch me.

In Rosza → said in a context of self defence, they would be allowed to make that threat, so wouldnt be an assault, the problem on the facts was that the defendants threat was not seen as being proportionate → not proportioante to say to stab them in the body.

Rosza → in certain circumstances would be a defence → but did not meet the reasonableness standard requires for self defence.

Question 17

Words alone cannot constitute an assault:

Answer 17

•The threat must be by an act or gesture (s 2)
•Fogden v Wade [1945] NZLR 725: Suggestion a woman in the street has sex with him. Act of walking up behind her = act.
•If the words are spoken at a distance: is there a present ability to apply the force?

In NZ in S2 → Threats must be by act or gesture.

Shouting or mouthing words → insults are not enough for an assault unless accompanied by an act or a gesture → if walking towards someone whilst saying insults potentially.

In UK words can.

IN NZ → S2 makes clear that it is by act or gesture.

But can be slight.

Fogdan → went up behind a woman and propositioned to her that they have sex, the action of walking up behind her was seen as act or gesture.

Was he in the present ability? Walking up right behind her, if he was far away, potentially not.

Or caused people to have reasonable grounds of that present ability.

Can also be mistaken → dark and person running past you, thinking they are coming to hit you → as long as person thinks it is reasonable that person can commit that assault.

Question 18

Mens rea: physical and psychic assaults:

Answer 18

•S 2 requires an “intentional” application of force (not recklessness: R v Young [2010] NZAR 22)
•Psychic assault: an intention to perform the threatening act and an intention to threaten the victim: Lazarus v Police (1997) 15 CRNZ 127.

Whether talking about a physical application or attempted → any of the two types of threatened are all about intention → no other form of mens rea is enoiugh

Young → Car was going to be reposed, got angry, started smashing the glass in the car, smash the window so car couldn’t be repossessed, someone else hurt by it. → wasnt guilty because didnt have intention to hurt the person, → just being reckless, conscious risk is not enough

Recklessness is not enough → anything in s2 has to be intention →

When talking about psychic assault → have to have intention to perform the threat, and intention to threaten the particular victim

Lazarus → smashed door window, road rage, and one of the passengers hurt by smashed glass → Court said not assault because person wasnt intending to perform act and wasnt intending to threaten the victim

So have to intend to perform the actual threat, and in case of Lazarus → have to intend to actually threaten the victim.

Mens rea → only intention that suffices, recklessness is not enough for the four types of assault in s2.

Question 19

Doctrine of transferred malice:

Answer 19

•Narayan v Police [2010] NZAR 36:
Doctrine applies to the offence of assault
•Chandler v Police [2010] NZAR 25:
The doctrine transfers malice. It does not
transform malice.

Malice → wickedness, old fashioned word.

Means you can transfer intention from one person to another.

Go to hit john, and hit Jim instead → can be transferred, the intention transferred.

Narayan → Mum holding child, and partner goes to hit the Mum, but ends up hitting the child and child hits the floor, → charged with assault on mum and child → argument was intend to hit mum but not child.

Court said → We can transfer intention of hitting mother to the consequence of hitting the child. Can transfer the malice or intention.

Go to hit one person and hit someone else → can transfer to another.

But it does not change the intention → so it transfers it but doesn’t change it.

Chandler → the defendant goes to hit another guy, but then girlfriend intervenes, ends up hitting girlfriend, attempting to hit man. → aggravated assault, more serious is male assaults female.

Being male assaults female is considered aggravated.

In this case → the Court said that he can be convicted for an assault because can transfer the intention to hit the man, on hitting the actual victim. So can be a common assault under 196 → But cannot change the intention, it cant make it into the more serious from (Male assaults female).

Conditions of that offence → is that you have to have the mens rea and actus reus, he had the mens rea for assaulting a man, but hit the woman. So the mens rea transfers and makes it a common assault because he did not have that elevated level of mens rea.
Aggravated assaults = common assault + aggravation

At heart have element of common assault but element that makes them more serious.

Question 20

Criminal Procedure Act 2011:

Answer 20

Section 143: Included offences
•If the commission of the offence alleged (as described in the enactment creating the offence or in the charge) includes the commission of any other offence, the defendant may be convicted of that other offence if it is proved, even if the whole offence in the charge is not proved.

From the criminal procedure act we know that → even if the aggravating fact cant be proven you can still be liable for the common assault.

If male assaults female can’t be proven for example → can still revert it to 196, lesser form, common assault.

Question 21

Assault + status of victim:
double penalties:

Answer 21

•Section 194: Everyone is liable to imprisonment for a term not exceeding 2 years who –
(a) assaults any child under the age of 14 years;
(b) being a male, assaults any female.

• All of these offences have at the heart of them a common assault.

Errors that people make → aggravated assault, people forget to prove the common assault.

If you have male assaults female for example, you look at has there been an assault based on s2 → prove that, then prove the aggravating element to make it an aggravated assault, more serious.

S196 → there is the common assault, what aggravates the assault or penalty is the status of victim → a child, or where a male assaults female.

(a) assaults child, male or female → two years in prison.

(b) someone that is male assaults a female knowing they are female.

Sometime aggravating element is the status of the person.

Question 22

Assault + status of victim:
double penalties:

Answer 22

•Section 194A: Maximum of two years imprisonment for everyone who:
–(a) assaults another person; and
–(b) is, or has been, in a family relationship with that other person.

Before when male assaults female in family violence context it would be 194B → but now we have specific relationship for family relo, broader than male assaults female.

Assaults person in family relationship. → Family member (cousin, uncle for example), family relationship → means someone who is spouse or partner, excludes landlord, tenants, flatmates, or has close personal relationship with her. →

People who are victims also use violence

Question 23

“Family relationship”:
s 12 Family Violence Act 2018:

Answer 23

a person (A) is in a family relationship with another person (B) if A—
(a) is a spouse or partner of B; or
(b) is a family member of B; or
(c) ordinarily shares a household with B (doesn’t include landlord/tenant or flatmates); or
(d) has a close personal relationship with B.

Question 24

Assault + further intent:
tripled penalties:

Answer 24

Section 192(1) Everyone is liable to imprisonment for a term not exceeding 3 years who assaults any other person “with intent –
(a) To commit or facilitate the commission of any imprisonable offence; or
(b) To avoid the detection of himself or of any other person in the commission of any imprisonable offence; or
(c) To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence.”

A form of aggravated assault → has assault at heart.

When someone is assaulting they have a further intention.

Mens rea for common assault is intention, have to intend the threat or application of force.

These offences are where you will have intended the assault but have a further intent.

192 (1) → three year penalty → assault but have intention to do something else as well.

Have intention for common assault → but in addition have to intend one of three things under (a) (b) or (c) .

192 (1) (a) → assault with intent to commit or facilitate another offence

Or assailt someone to avoid detection from arrest.

Or to avoid detection of themselves or someone else.

What aggravates is the extra element → done with the other intention, goes up to three years.

•Section 193: Everyone is liable to imprisonment for a term not exceeding 3 years who with intent to injure any one assaults any person
•
Assault + “intent to injure any one”

Assault → plus extra intention →

And extra intention is to injure → Cause something more than trivial harm but not serious harm.

Range of bodily harm that can happen → not that serious to not that quite serious.

S193 → if someone assaults someone, but had intent to injure, so had intent to do some more serious harm.

Because assault is just common assault → Basic asasult, force. → But in mind had an intention to do somehting more serious.

So have intent to cause someone bodily harm.

Question 25

Assault + victim status + further intent:
tripled penalties:

Answer 25

•Section 192(2): Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his duty.

S192 subsection 2 → specific.

Has at its heart a common assault → but this time you are assaulting a police officer. Status of the person aggravates the offence.

Everyone is liable to imprisonment, who assaults constable or anyone aiding, with intention of obstructing the person from doing their duty.

Aggravating elements → status of police officer, and obstruct them from doing their duty.

That is what aggravates it and makes it three times more serious in terms of the punishment.

Question 26

Assault with a weapon:
five times the penalty

Answer 26

Section 202C:
(1)Everyone is liable to imprisonment for a term not exceeding 5 years
(a) who in assaulting any person, uses any thing as a weapon; or
(b) while assaulting any person, has any thing
with him or her in circumstances that
prima facie show an intention to use it as
a weapon.
•Te Moananui v R [2017] NZSC 93.

Most serious form → five times the penalty.

Where you assault someone with a weapon → 202C → when someone assaults they use anything as a weapon, or have something on them that shows prima facie intention to use it as a weapon.

Weapon → has more expansive definition that knife and gun. For example car, or animal or dog. → Flower pot for example, anything that can cause this kind of damage.

Aggravating element → weapon.

Have to prove the common assault first then be able to show tha tthey used a weapon, or had on them a weapon that showed the intention to use it as such.

Aggravated assaults → always see wehtehr you can prove the assault (common assault), can you meet the requirements for an assault then look at aggravating elements.

Important → for all aggravated assaults have to have actus reus and mens rea for assault, then the additional element.

Te Moananui case → in Prison, prisoner tried to resist restraint with officer, and had a shank hidden in trousers, tried to argue it was assault but not more serious assault with weapon because he didnt use it.

But Court said → No if you have on person and at first value a prima facie intention to use it as a weapon then that is enough to constitute it as an assault (aggravating), weapon enough if prosecution can prove beyond reasonable doubt that he had an intention to use it which in this case they did.

Question 27

Can be called assault → but assault in a very broad way → can encompass alot → but in criminal law it has specific meaning

So we call them interpersonal violence offences

Many interpersonal non sexual and non fatal ones.