Defences To Interpersonal Violence Offences

Question 1

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

Answer 1

Originate to common assault → they now apply to all of those three different types of interpersonal, non-fatal, non-violent offences

Three defences can be raised in relation to all three types of offences.

Question 2

Specific defences:

Answer 2

Defence of victim consent
2. Doctrine of “common intercourse” (arguably derives from the doctrine of implied consent)
3. Domestic discipline
General criminal defences:
•(discussed later in course) may also be potentially available depending on the facts

First point is that → different interpersonal acts above have specific defences → but still can raise the more general defences like self defence if they are raised on the facts.

Three specific defences → most depth → victim consent → defendant raising that victim consented to infliction of harm

Doctrine of common intercourse → in everyday life have to accept a certain level of what in other situations will be an assault → accidentally bump into someone, on the train etc.

Domestic discipline → how much bodily force can be used against a child?

Question 3

Defence of victim consent:

Answer 3

Defence of victim consent:
-Preserved as a common law defence by s 20(1)
(R v Lee (2006) 22 CRNZ 568; R v Barker [2010] 1 NZLR 235)
-Cf sexual violation offence where non-consent of the victim is an element of the offence
-Implications of defence of victim consent:
–Evidential burden (defence)
–Persuasive burden (Crown)
–Available for a wide range of violence offences
–If successful, results in an acquittal
–Defences do not necessarily require mens rea (But see Lee and Barker: defence of victim consent does)

Public policy issues → judges and juries have to grapple with these.

England take a different approach to regulating this area of victim consent.

Lee, Barker, S → three cases of how in NZ we deal with the idea of Victim Consent.

England takes a very different approach to victim consent.

England takes a much more restricted approach → limit circumstances

NZ takes a more expansive approach → will allow victim consent more expansively.

Idea of victim consent → is preserved under our common law → under s20 (1) → capture section which says common law defences allowed.

Victim consent → common law.

The victim consent → saying someone consented to it → acts as a defence → has nothing to do with the offence → after proven offence → then raise evidence that they consented.

When talking about consent for sex violation → that works as part of the offence.

For interpersonal violence offences → victim consent raised as a defence

In sexual violations → it is raised as the offence in relation to mens rea and actus reus.

Preserved under common law

Evidentiary burden → if evidence then defence has to put that in evidence to be considered

But burden of proving case still lies in the Crown → Crown has persuasive burden → and have to prove beyond reasonable doubt.

Defence of victim consent – applies to assault, aggrvated assault and all int vilence assaults above.

If they successfully raise it then the defendant will be acquitted.

In Lee and BArker → read in a mens rea element into the offence → victim consent → the first question becomes did the victim actually consent, and then a mens rea element, defence raised if the defendant honestly believes that the victim consented.

Prosecution has to prove that they did not consent, but also has to establish that the accused knew that they didnt have this persons consent → so Crown has to prove this → read in a subjective mens rea

Have to prove that the defendant did not have an honest belief that the victim consented.

If defence → want to raise evidence that the victim consented → and client had honest belief that victim consented.

Glazebrook in the case of Lee → made it clear that she saw that subjectively, has to be an honest belief, even if it is a mistake in belief → as long as you can say it is honestly held.

In the case of Barker → Justice Hammond tried to argue → a more objective standard, can you say the defendant had reasonable objective grounds for the belief in that consent → BUT THIS HASN’T TAKEN OFF.

The majority view is a SUBJECTIVE INQUIRY.

Defendant says that she consented and i honestly believe she was consenting → as defence raise evidence that victim consented, and that cilent had honest belief in that persons consent → then the proseuction has the normal standard of proof → Show that the victim did not consent, and the defendant did not have an honest belief.

Question 4

Defence of victim consent:

Answer 4

•Did the victim consent? – question of fact
AND
•Mens rea element –
•Defence can be raised if the D honestly believed that the victim consented;
–Lee: It must be established that the accused knew they did not have the victim’s consent/the accused did not have an honest belief that the victim consented (per Glazebrook J).
–An honest but mistaken belief in consent is a defence (Ah-Chong v R [2015] NZSC 83).
–Barker: It must be established that the accused did not believe that the victim consented or had no reasonable grounds for their belief that the victim consented (per Hammond J) (minority view).

Question 5

Victim Consent:

Answer 5

•Consent can be express – words or conduct (or both)
•Consent can be implied
–e.g., when person voluntarily participates in activities, such as contact sports, they impliedly consent to the physical application of force.

Can be by words or conduct, → consent can be expressed and can also be implied.

For example in sports it is implied → taking part voluntarily shows implied consent to contact that will happen in the rules of that sport.

Question 6

Consent raises multiple issues:

Answer 6

•Was the victim capable of consenting and did they in fact consent?
•Is the defence of consent legally available? i.e., is there a level of harm that cannot be legally consented to?
•Did the victim’s mistaken belief vitiate their consent? (And was consent vitiated to the physical interaction itself or just the harm that resulted?)
•What are the parameters of the victim’s consent and have they been exceeded? (For example, what are the limitations of implied consent in relation to sports?)

Consent is a tricky issue.

Some case law has difficult fact patterns → saying they consented to quite intense things.

Can have situations where someone is saying the other consented → And we have to decide was that person able to consent → for example youth, mental impairment (is it a true informed mind consenting),

Sadomasochism for example → is there a level of harm that nobody can actually consent to?

May the Court say no that is too harmful?

What if someone exceeds what we’ve agreed to?

Agreed to a certain level of harm → what if someone goes beyond?

For example also rugby → exceeds a normal tackle for example.

Question 7

The social utility of the activity (victim consent):

Answer 7

•An agreed upon benefit to society e.g. surgery
•A majority consensus tolerates or enjoys it e.g., boxing
•
•
•
•A human rights approach: the activity represents the individual expression of a fundamental human right; e.g., Lee: exorcism is a manifestation of religious belief and therefore protected under s 15 of BORA 1990

Juries will ask where is the social utility of this activity →

Surgery for example, there is a value of having surgery as it improves the life of others.

Boxing is entertainment.

Case of Lee → dealt with a serious activity that lead to the death of victim in relation to excorcism → crush the demons out of the victim

Court allowed an argument that the victim consented under s15 of the BORA → express religious beliefs.

Question 8

Concerns about preventing harm (individual and collective):

Answer 8

•The level of harm to the victim and its durability
•The potential for risked harm to be unpredictable and to escalate (e.g., loosen inhibitions)
•The degree of risk that the harm will occur
•Safety mechanisms to minimise the harm
•That non-consenting victims might be pulled into the activity and also harmed (police, the public)
•The cost to the public of maintaining the victim once harmed
•Allowing citizens to hurt each other injures society in some more profound sense

Social utility → one of the policy issues that judges and juries must keep in mind

Also preventing harm →

Degree of risk of harm →
Cost to society.

Broader sense → harm to individuals means harm to us potentially?

Question 9

Concerns about victim vulnerability:

Answer 9

•Vulnerability because of age, mental incapacity, past untreated psychological trauma, intoxication (creates doubts about the value of the victim’s personal autonomy)
•Exploitative circumstances (e.g., imbalance of power with the perpetrator)

Harm to individual and society

Victim vulnerability.

Victim status that makes them vulnerable?

Intoxication for example, persons who have trauma, age for example → something about victim makes them vulnerable

Difference in power?

Is there something between power imbalance and age differential that makes that victim more vulnerable?

Question 10

Morality (victim consent):

Answer 10

•E.g., the sanctity of the human body, the evil of cruelty
•See R v Brown [1994] 1 AC 212 where the English House of Lords expressed concerns about “perverted and depraved” practices, a “cult of violence”, “violence which is inflicted for the indulgence of cruelty”, “infliction of pain is an evil thing”, and “cruelty is uncivilised”.

Some jurisdictions place much more emphasis on morality

Moralistic decisions → NOT IN OUR SOCIETY

Famous case of R v Brown → gay men inflicted a range of different bodily harm on their genitals and other parts of their body. Completely consensually, nobody went to the police → videod it, and the video got into hands of police

Brown → we are not going to allow these men to do these to each other

Lot of the judgements were about morality in the judgement → uncivilised, depraved, evil → moralistic judgements

Question 11

A balancing act (victim consent):

Answer 11

•The value of personal autonomy versus victim vulnerability
•The level of harm caused or risked versus the social utility of the activity in question
•Putting aside issues of morality

Judges and juries → a balancing act → value personal autonomy → i have right to choose what happens to it, and with whom and what happens etc.

Then have to balance that with victim vulnerability

And also the level of harm

And also the social utility.

In NZ we put much less emphasis on morality.

In NZ context when thinking about victim consent → personal autonomy → we value this

Right to determine what happens to them → but balance with social utility, does it make victim vulnerable, what is the harm that is being caused or risked?

Question 12

Policy decisions:

Answer 12

•At what level of harm should the courts use the criminal law to scrutinise behaviour?
•What presumptions should exist at that level? i.e., presumptions in favour of legality or illegality?
•On what basis should we scrutinise the behaviour? i.e., as a category of behaviour or in relation to each individual manifestation of the behaviour.

Question 13

Overseas positions:

Answer 13

•England: The victim
cannot consent to
the infliction on
themselves of
actual bodily harm.
•Australia: The victim
cannot consent to
the infliction on
themselves of
grievous bodily harm.

•Actual bodily harm = bodily harm that is neither trivial nor serious.
•Grievous bodily harm = really serious injury.
•It is a question of degree. Harm does not have to be life-threatening, dangerous or permanent to qualify as either.

What happens in England in contrast to NZ?

At what point will the law say too much harm to consent?

England is pretty low → England says that in most cases someone cannot consent to the infliction of ABH to them

ABH → more than trivial but not serious

Low threshold → Cannot consent unless you fal within a category.

Australia → puts it at a higher level of GBH, can consent to anything under than that.

Question 14

England: R v Brown [1994] 1 AC 212 (HL):

Answer 14

•Where actual bodily harm (and above) is intended or caused, the consent of the victim is not available as a defence, unless the activity falls within one of the exceptions to the rule.
•Exceptions to the rule disallowing consent for certain socially approved activities; e.g., lawful sports, surgery, rough and undisciplined horseplay, lawful chastisement, body piercing and tattooing.
•Majority (3:2): Sadomasochistic sex is not a socially approved activity.

R v Brown → 10 men who were gay, engaged in violent activities on body including their genitals, but they consented → Charged with offences in relation to ABH and GBH.

When they convicted the men they said → where the level of injury falls to be ABH → just injury → any kind of ABH or above → that is being intended or caused by another → the consent of the victim is not available → unless falls into socially accepted categories.

England → ABH → cannot say they consented → unless socially accepted, for example tattooing, sports, body piercings.

England sets bar low and says cannot consent to ABH and above.

The issue in the case of Brown is sadomasochistic behaviour towards each other → and the judges in a majority of 3-2 were very clear that S and M sex is not a socially approved activity.

Question 15

Subsequent English cases:
Difficulty of application:

Answer 15

•R v Wilson [1997] QB 47: Deliberate infliction of actual bodily harm in the course of private consensual sexual activity able to be consented to. Analogy with body piercing.
•R v Emmett [1999] EWCA Crim 1710: Serious bodily harm risked by consenting adults during consensual s-m sex and actually occurred. Held, degree of actual and potential harm was too high and injury too unpredictable to allow a defence of victim consent.

Whole range of cases where they have difficulty applying the view of BRown in England.

England says cannot consent to ABH unless socially approved activity.

Case not long after Brown called Wilson → in Wilson → he branded with a knife his initials on her bottom, this is a level of harm that is atleast ABH → but in this case the Court said that can fit one of the socially approved categories, and made it akin to tattooing or piercing (analagous) which is socially approved.

Judge in Wilson case → said what goes on behind closed doors between husband and wife is not for the Court to get involved → Moralistic judgement

But did not apply this in Brown.

Question 16

We can’t consent to this: Defendants who have relied on a “sex gone wrong” defence:

Answer 16

Development where people are talking about rough sex → defendants are trying to depend on sex gone wrong → what they are saying is they weren’t intending to cause or even recklessly cause, i was intending to pleasure them but it went wrong.

Strangling them to heighten sexual pleasure but went wrong for example.

Question 17

The Domestic Abuse Act 2021 (England):

Answer 17

•Victim consent is not a defence when the defendant inflicts serious harm (including actual bodily harm) on another person who consents to that infliction of harm ‘for the purposes of obtaining sexual gratification.’ (s 71) Exception for known STDs.
•Victim consent remains a defence to strangulation so long as the defendant does not intentionally or recklessly cause serious harm (including ABH) to the victim (s 70).

Domestic Abuse Act in England → in s71 → they effectively confirm the position in Brown → that victim consent cannot be a defence when someone inflicts serious harm → which included in ABH → even if person consents, if for the purpose of sexual gratification.

They do allow under s70 for someone to raise victim consent in relation to strangulation → as long as it cant be proven that they intended or recklessly was going to cause them serious harm.

But can be open to abuse → as can say just intending to pleasure her not cause her serious harm.

England takes a very different view.

Question 18

Defence of victim consent:
New Zealand position:
NZ: R v Lee [2006] 3 NZLR 42:

Answer 18

In principle, the victim may give a legally effective consent to any harm falling short of death “unless there are good public policy reasons to forbid it and those policy reasons outweigh the social utility of the activity and the value placed by our legal system on personal autonomy. A high value should be placed on personal autonomy.”

What we do in NZ → very different approach to England

No socially accepted categories → deal with it on a fact to fact basis.

Place high value on personal autonomy → comes through in case of Lee.

Lee → unless there is really good reasons → then will place high value on persons autonomy

So can do what it want with my body.

Question 19

R v Lee: four tiers:

Answer 19

1.No bodily harm intended or risked by the accused – consent is a complete defence with no exceptions
2. Actual bodily harm intended or risked by the accused – consent is generally a defence except in cases of non-sporting fighting (and perhaps some other rare categories, as yet unknown).
3. Grievous bodily harm intended or risked by the accused – consent is generally a defence except where the judge balances personal autonomy, the social utility of the activity, the level of seriousness of the injury and risk of such injury and reasonableness of the belief in consent and concludes that consent should be withdrawn from the jury on the facts
4. Death intended or risked by the accused – consent is not a defence with no exceptions (s 63)

Lee → tragic case where defendant had set up a religous group, and victim who was a woman had a skin disfigurement, and trying to get demons out of her, inflicted bodily harm on her, knelt on her, partially strangled her, put pressure on her torso.

In this case → had he done an unlawful act? They set it as ABH → He argued that she had consented.

In the end that was accepted → and the CA agreed that consent of the victim could be raised.

So Lee was not convicted of her manslaughter.

The important points of law in Lee → comes up with four different tiers

They say where no bodily harm is intended or risked buy the accused → then consent is going to be a complete defence.

Then if ABH is risked consent will normally generally be a defence, except of non-sport fighting. → consent is going to be a defence in relation to ABH is street fighting.

Then at the more serious in tier three → where someone is intending or risking GBH → again we say consent will generally be a defence → unless the judge wants to withdraw the victim consent from jury consideration

Judge has important job → have to do balancing act → was victim vulnerable, social utility? Where is the harm being risked?

Fourth tier → where death is intended or risked → then consent can never be used. s 63

Two categories we focus on are two or three →

Question 20

R v Lee [2006] 3 NZLR 42:

Answer 20

•Issue depends on the level of harm that the accused intended or subjectively risked
•
•Not the level of harm that they actually caused or what would be obvious to a reasonable person

Importantly → when you look at the tiers → when you talk about bodily harm, what they are talking about is whether its intended or risked → not the harm that actually happens but what he is intending or risking.

Question 21

R v Lee: On the facts, the defence of consent is available…

Answer 21

•Actual bodily harm intended or risked so
consent available: Exorcism is not an exception
(religious freedom)
•Is that the end of the matter?

In Lee →

Question 22

No:

Answer 22

•It is always open to the jury to find that the victim was not consenting on the facts and that the accused did not believe that they had the victim’s consent.
•Where the accused knows that there is a major risk involved in the activity that the victim does not know about there may be an obligation to disclose that risk to the victim. In other words, there may be a need for “informed consent”.

Question 23

NZ: R v Barker [2010] 1 NZLR 235:

Answer 23

•15-year-old complainant with a history of cutting herself. Dragon cut into her shoulder.
•17-year-old complainant who had taken party pills. Corset cuts.
•Trial judge found injuries intended or risked were “actual bodily harm”.

Second big NZ case is the case of Barker → he had set up a S and M venue in his house, and lured young girls into his house, and they were high on drugs and intoxicated, 15 year old, he cut into her an image of dragon, and 17 year old girl, taking drugs, cut into her and scarified her in a corset pattern across her upper body.

The trial judge put this level of harm intended or risked at ABH →

Question 24

R v Barker:

Answer 24

•Trial judge withdrew victim consent on the facts:
–The age of complainants – which reduced social utility of scarification to them and outweighed the value placed by our society on personal autonomy. There were numerous legal age limits for risky activities to protect young people from themselves and those of greater maturity who are able to manipulate and pressure them.
–The sexual context.
–Barker’s unprofessional manner.
–Barker’s knowledge of the complainants’ drug use and history of self harm.
–The nature of the cuts and scars.

But the trial judge still even putting it at ABH → still withdrew their consent → the trial judge said the girls are young, and no social utility in this activity.

They talked about how this was done in a messy unprofessional manner → trial judge withdraws victim consent even though in Tier Two.

Even though Lee makes it clear that tier two is allowed to be victim consent unless it is street fighting.

Barker wasn’t correct application of Lee → should have left it to the jury to consider.

Didnt get to that point because trial judge withdrew.

Went to CA → and agreed with defence → the trial judge should not have withdrawn the defence of victim consent → because case of Lee has these tiers.

The only exception is street fighting.

Question 25

Was this a correct application of R v Lee?:

Answer 25

• Four tiers

The CA said the balance of utility shouldnt have happened if following Lee → so affirmed the Lee approach and endorsed.

Question 26

R v Barker: Court of Appeal:

Answer 26

•The defence of consent should have been left to the jury.
•O’Regan J:
–Actual bodily harm – the only exception to allowing the defence of consent is street fighting. Other exceptions will be very rare and should not be based on what judges think is acceptable in a relationship.
–The balancing process based on public policy is reserved for cases where grievous bodily harm is intended or risked.
•Hammond J:
–The court cannot remove the defence by analogy with section 134A (= judicial legislation).
–Rejection of paternalism. Why is the court better placed than an individual to know what is good for them?

Justice Hammond in Barker → Why is the Court in better place than individual to know what is good for them?

Question 27

R v Barker: Court of Appeal
Glazebrook J IN DISSENT:

Answer 27

•There is a sliding scale of intended or risked harm.
•The more serious the harm the more likely that public policy factors will exclude the defence of victim consent.
•The scope for taking into
account individualised
factors will increase
as the intended level of
harm increases.

Glazebrook in Majority in Lee who had come up with four tiers did not like what was happening in Barker.

Did not agree with the level of harm set at ABH.

If trial judge had set the level at GBH then the trial judge could have done all that public policy, social utility, victim vulnerability.

But because he put the level of risk at ABH, it takes away flexibility.

Justice Glazebrook said in the dissent → created a sliding scale.

What she says is there is a huge variety of behaviour that is not GBH but close to GBh. the closer you get to GBh there is this sliding scale, the more serious this harm, the closer to GBH, then the judge should be able to do public policy decision act.

Question 28

R v Barker: Court of Appeal
Glazebrook J IN DISSENT:

Answer 28

•Scarification in a sexual context on a child under 16 is one of the rare exceptions (along with fighting) where the defence of consent is not available to actual bodily harm.
•In relation to the 17-year-old, the harm was less than GBH but more than ABH: vulnerability of the complainant, age disparity, drug taking, sexual overtones, BDSM environment, unprofessional manner of scarification, cuts devoid of artistic merit and disfiguring, administered in a degrading manner. These considerations outweighed the utility to her of the activity in question and her personal autonomy.

What she suggested was that scarficition in a sexual consent → should be an exception like street fighting. In relation to 17 year old, corset like shape cut, the harm is nearly GBH, so we should be able to look at vulnerability of girls, age disparity, sexual context, S and M.

All these things should have outweighed the question of personal autonomy.

Wanted to bring in sliding scale to give judges more flexibility.

Restricted by trial judge → because only set the level of harm at ABH.

•Do you agree with the majority or the minority of the Court of Appeal in Barker?
•
•What factual finding set up the problem on appeal?

-

Question 29

NZ: S v R [2017] NZCA 83:

Answer 29

•There is a sliding scale of harm between mere bodily injury and grievous bodily harm: A broken finger is “towards the grievous bodily harm end of the spectrum.”
•There is a distinction between risked harm and intended harm.
–Intentional infliction of harm greater than actual bodily harm: The defence of consent may be withdrawn on public policy grounds
–Where grievous bodily harm is intended: The defence of consent will rarely be available. More likely to be available when GBH is only risked. (Ah-Chong v R [2015] NZSC 83).

•No social utility in the deliberate infliction of serious harm in a domestic relationship as a condition for maintaining the relationship
•Public policy reasons for the displacement of personal autonomy on the facts:
–Domestic violence is a major problem in NZ
–Significant power imbalance in the relationship
–Victim was vulnerable because of mental health difficulties and record of self harm
–Gender is a risk factor for domestic violence
–Mature man deliberately inflicting serious harm on a teenage girl

Have the case of S v R → Traumatic case → young girl who was 16, run away from state care, picked up by man after hitchhiking, goes back and lives with him, he has young children. He accuses her of interfering sexually with one of his children.

Finally says to him yes i did it, i need to be punished, so ended up smashing her finger with a hammer as punishment.

This is set at a section 188 when it came to trial → wounding with intent.

What we see here is the trial judge → confirming that sliding scale that was only mentioned by Glazebrook in Dissent, now we see it used as precedent in CA in this case.

Sliding scale of harm between ABH and GBH → So even though this was set at a level of injury can still use sliding scale to say that when you get close to really serious harm → the judge can still come in and do public policy weighing up

If it comes close to GBH then judge can do public policy weighing up.

Closer to GBH the more likely can use sliding scale.

In case of R → can see difference between someone is risking a bodily harm and when someone intends it → so if you intend someone harm that is close to GBH that is much more likely that the judge will say the defence should not be available for the jury to consider.

Lee with its four tiers gives us the categories → tightly written → development. → no flexibility.

Glazebrook in Dissent → has now come into law as precedent in the case of S v R → even if trial judge sets at ABH, is the levle of harm getting to GBH, and should we do an assessment based on the social utility factors → then can withdraw the jury consideration.

The reason why the Court of Appeal said this is because there is no social utility in what happened to that young girl (getting close to GBH). → what it was was the violent infliction of harm in domestic, or intimate partner relationship → clear public policy reasons why we should displace personal autonomy.

FAmily violence, age disparity, power imbalance, vulnerable, mental health, self harm, in and out of state care.

Even at level of ABH being intended or risked we want to use Glazebrooks sliding scale.

Question 30

Kempson v R [2020] NZCA 656:

Answer 30

Kempson → Grace Millaine

•Jury found that Kempson had the mens rea for murder – meaning that s 63 applied and consent was not available as a defence.
•If Kempson had not had the mens rea for murder, the defence of consent would have been available. i.e., that the victim consented to strangulation so no unlawful act causing death. Always a question of fact as to whether she consented or not.

Kempson tried to run argument that strangulation was for pleasure and was rough sex gone wrong.

Tiers in Lee → when someone risks or intends death then victim consent is not an issue → never an issue because he was convicted of her murder → had mens rea for her murder.

If he hadn’t had mens rea for murder → then judge said would have left victim consent to the jury.

Had the mens rea for murder s63 → consent is never going to be available for an offence which can cause death.

Question 31

Defence of victim consent:
Mistaken consent:

Answer 31

•Mistaken consent is not a consent if the mistake was as to the nature of the act or the identity of the person who did the act.
•But see R v Lee and the suggestion (in obiter) that an informed consent to unprotected sex when the accused has HIV is necessary if consent is to be raised as a defence (cf Hammond J in R v Barker).

What happens if someone is mistaken about consent that they are giving → law applied restrictively → mistaken about nature or the act, or the person that is doing the act that we would say it would vitaite the consent.

For example, its dark and i think im consenting to sleep with John, but Jim jumps through window and haves sex with the person instead.

Or nature of the act → number of cases where someone thinks they are consenting to a medical procedure but actually someone is doing a sexual assault on them instead.

Will only vitiate a victims consent in very restricted occasions where it can be proven that the victim was mistaken as to the actual act happening, or the person doing the act.

Question 32

What does a mistake as to HIV vitiate consent to?

Answer 32

•The risked or actual infliction of HIV (as GBH)
–Where HIV was transmitted: s188(2) (causing GBH with reckless disregard for the safety of others) (N.B. Filitonga v R [2017] NZCA 492: medical advances might persuade a jury that HIV infection does not amount to GBH.)
–Where HIV was not transmitted: s 145 (criminal nuisance – breach of a s 156 duty (R v Mwai [1995] 3 NZLR 149) knowingly endangering the safety or health of any individual)
•The act of sex itself? (moot point in NZ)
–Mistake goes to the nature and quality of the sexual act and vitiates consent to sex whether or not HIV is transmitted: s 128 (sexual violation – non-consensual sex)

Question 33

Overseas positions:

Answer 33

•In England non-disclosure of HIV status negates consent to the risk of HIV:
–R v Dica [2004] EWCA Crim 1103
–R v Konzani [2005] EWCA Crim 706
•In Canada non-disclosure of HIV status negates consent to sex:
–R v Cuerrier [1998] 2 SCR 371

Question 34

NZ: KSB v ACC [2012] NZCA 82 (civil case):

Answer 34

•Non-disclosure of HIV status vitiated victim’s consent to sex. However, decided in the ACC context and left open the issue in the criminal justice context.

Question 35

Implied consent in sports:

Answer 35

In NZ and Australia, we don’t tend to prosecute for assault in the sporting context

Why is that?
Is it a good thing?

Consent can be express or implied

Express → Said or by conduct, showed agreement very expressly.

But also express can be implied → for example sports, in NZ and Australia very rarely prosecute for interpersonal violence offences in sporting context.

Leave it to regulatory sporting boards to manage misconduct in relation to a sport.

It is a buy in → if i agree to box, rugby, football, then i am giving my implied consent to have a level of force implied against me if its part of the game.

Other reasons → Within sporting there is already sporting bodies which deal with it, going beyond what is right in the game

Question 36

Implied consent in sports:

Answer 36

In NZ and Australia, we don’t tend to prosecute for assault in the sporting context

Why is that?
Is it a good thing?

Consent can be express or implied

Express → Said or by conduct, showed agreement very expressly.

But also express can be implied → for example sports, in NZ and Australia very rarely prosecute for interpersonal violence offences in sporting context.

Leave it to regulatory sporting boards to manage misconduct in relation to a sport.

It is a buy in → if i agree to box, rugby, football, then i am giving my implied consent to have a level of force implied against me if its part of the game.

Other reasons → Within sporting there is already sporting bodies which deal with it, going beyond what is right in the game

Question 37

Implied consent in sports:
Canada: R v Cey (1989) 48 CCC (3d) 480:

Answer 37

•“Ordinarily consent, being a state of mind, is a wholly subjective matter to be determined accordingly, but when it comes to implied consent in the context of a team sport, such as hockey, there cannot be as many different consents as there are players on the ice, and so the scope of Implied consent, having to be uniform, must be determined by reference to objective criteria.”

Overseas examples that take different views from NZ.

Ice hockey in Canada lot of conduct that goes beyond the conduct permitted by the game.

Cey → Court made it clear that it wanted to get involved in the conduct above.

When it comes to team sport like ice hockey → there cannot be as many consents as players → all of us set threshold of consent as somehting different → therefore scope of implied consent → but also have to have an objective criteria.

When is that level of conduct going past that level that i have consented to?

Conditions as to which game is played, nature of act, extent of force, degree of risk of injury, and probability of harm

Differ from sporting context → Boxing have to knock someone out → so different scope of implied consent

Canada → tend to prosecute more → and look at it in an objective sense → has it overgone the other persons implied consent in relation to taking part in that activity.

Question 38

Canada: R v Cey (1989) 48 CCC (3d) 480:

Answer 38

To determine whether consent is implied:
- conditions under which the game is played
- nature of the act under investigation
- extent of the force employed
- degree of risk of injury
- probabilities of serious harm

Question 39

England: R v Barnes [2005] 1 WLR 910:

Answer 39

•English Court of Appeal adopted the approach taken in the Canadian case R v Cey.
•In highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment and even if the conduct justifies a warning or being sent off it may still not reach the threshold level required for it to be criminal.

Adopted the case of Cey

Barnes → when you play sport you impliedly consent → but when you go beyond a level that conduct may be → and has someone exceeded that conduct → even if conduct justifies warning or send off → it still may not lead to criminal liability → goes beyond agreed rules of game → but when do we leave it to sporting bodies, or referees? And when does it pass the parameter that would elevate it to the criminal realm.

Question 40

England: R v Barnes:

Answer 40

•The Court of Appeal said that to exceed the parameters of implied consent, the conduct had to go beyond what a player could reasonably be regarded as having accepted by taking part in the sport.
•The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant’s actions go beyond the threshold.
•The jury had to ask itself among other questions whether the conduct was so obviously late and/or violent that it could not have been regarded as an instinctive reaction, error or misjudgment in the heat of the game.

Adopted objective approach → the conduct that is inflicted has to go beyond what was reasonably expected/regarded, as what was expected as taking part in that sport → what type of sport, amateur vs professional, degree of force, risk of injury → objective criteria from Cey → and subjective element → State of mind of the defendant → and they take that into account to see if it goes beyond what is reasonably expected.

Question 41

2. Doctrine of “common intercourse”:

Answer 41

Old fashioned common law defence

Question 42

The doctrine of “Common intercourse”:

Answer 42

•Boughey v R (1986) 161 CLR 10: Any act reasonably necessary for the common intercourse of life if only done for that purpose and not disproportionate to the occasion will not amount to an assault. Even if no consent.

In ordinary life things may happen that we dont consent to, and would amount to consent, but is fine because it is normal in everyday life → in train and their backpack hits someone, walks into office, and shakes hand etc.

In ordinary life someone does not consent to, but happens because of our normal accepted behaviour.

Boughey → reasonably necessary for the common intercourse → shaking hand, crowded bus and likely that someone elses body will touch mine, aeroplane someone elses body will likely touch mine → but if someone goes beyond that → if standing on bus, someone rushes through everybody and tries to knock everyone away, that would be beyond common intercourse or what we would expect from everyday life.

Can argue common intercourse is implied consent.

Colleague keeps hugging me after i told him not to → then potentially it goes beyond.

Question 43

3. Defence of Domestic Discipline:

Answer 43

Defence of domestic discipline: s 59

(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of –
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.

Question 44

3. Defence of Domestic Discipline:

Question 45

Section 59:

Answer 45

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(4) To avoid doubt it is affirmed that the Police have the discretion not to prosecute … where the offence is considered to be so inconsequential that there is no public interest in [prosecuting]…
Previous section 59 was repealed and replaced June 2007:
•(previous wording): Right of parent or caregiver of child to use force “by way of correction towards the child, if the force used is reasonable in the circumstances.”