Investigating Violent Offences (Topic 1 - Serious Assaults)

Question 1

Health and Safety at Work Act 2015

Answer 1

The expectation of the Commissioner and the Act is that people in the workplace will:

Take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of others

Comply as far as they are reasonably able to with any reasonable instruction that is given in order to comply with the Health and Safety at Work Act 2015 or regulations under that Act

Cooperate with any reasonable policy or procedure relating to health or safety at the workplace that has been notified to them and take immediate action to stop any perceived or potential breach of the act or if impractical, immediately report the matter to a supervisor

Question 2

Aggravated assault (section 192(1) Crimes Act 1961)

Answer 2

The suspect with intent to:

• commit or facilitate the commission of any imprisonable offence, or
• avoid detection of self/another in commission of any imprisonable offence, or
• avoid arrest or facilitate flight of self/another upon commission or attempted commission of any imprisonable offence
• assaulted any other person.

You must prove the intent of the offender:
• in relation to the commission or attempted commission of an imprisonable offence, and
• to assault.

Section 192(1)(c) requires proof of the commission or attempted commission of a crime by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate – R v Wati and others (1984) 1 CRNZ 380 refers.

Question 3

Aggravated wounding (section 191(1) Crimes Act 1961)

Answer 3

The suspect with intent to:

• commit or facilitate the commission of any imprisonable offence, or
• avoid detection of self/another in commission of any imprisonable offence, or
• avoid arrest or facilitate flight of self/another upon commission or attempted commission of any imprisonable offence
• wounds, maims, disfigures or causes grievous bodily harm to any person, or
• stupefies a person, or
• renders a person unconscious, or
• by any violent means renders any person incapable of resistance.

“Before an accused can be found guilty of an offence under section 191 or section 192, it must be shown the offender either meant to cause the specified harm, or foresaw that the actions undertaken by them were likely to expose others to the risk of suffering it” - R v Tihi [1989]

Question 4

Aggravated Injury (section 191(2) Crimes Act 1961)

Answer 4

The suspect with intent to:

• commit or facilitate the commission of any imprisonable offence, or
• avoid detection of self/another in commission of any imprisonable offence, or
• avoid arrest or facilitate flight of self/another in commission
• injured any person.

Note: You must show the offender intended to injure as well as commit the offence.

For example, an attack on a prison officer with an iron bar in the course of an attempted escape was the employment of violent means, the purpose of which was to render the prison officer incapable of resistance.

Question 5

Notes on Aggravated Wounding and Injury

Answer 5

Note 1: Where a victim is seriously injured there is no need to prove that they were rendered incapable as a consequence. However, where the threat or injury
has not been physically debilitating, you must prove the effect of the violent means that it rendered the victim incapable of resistance. For instance, the victim may be held at gunpoint or tied up or so fearful of their safety that they are rendered incapable of resistance.

Note 2: The offences aggravated wounding and aggravated injury are essentially the same. The difference is in the degree of violence used in committing the offence.

Question 6

Assault by male on female (section 194(b) Crimes Act 1961)

Answer 6

You must prove the identity of the suspect and that he assaulted a female.

The charge should not automatically be used in all situations where a male has assaulted a female. The section should be used when the assault is more than trifling, and should be regarded as one possible charge among many in the scale of available charges.

Question 7

Assault on a child (section 194(a) Crimes Act 1961)

Answer 7

You must prove the identity of the suspect and that they assaulted a child under the age of 14 years.

Question 8

Assault on police, traffic or prison officer (section 10 Summary Offences Act 1989)

Answer 8

You must prove the identity of the suspect and that they assaulted any:
• Police constable, Traffic Officer, or Correctional Officer who was acting in the execution of their duty.

Note: For this offence, two kinds of intent are involved: the intent to assault, and the intent to obstruct in the execution of duty.

If there is doubt that the suspect knew or would reasonably have assumed that the victim was an officer acting in the execution of duty, it may be preferable to file a charge of common assault rather than lose the charge.

For example, if a plain clothes officer is assaulted while breaking up a fight, the suspect may not realise at first who they are assaulting.

The degree of the assault is also a factor. This section is appropriate where the assault is trifling, and is on Police.

However, if serious injury results, or it is difficult to prove that the defendant’s actions were intended to obstruct the victim in the execution of his duty, it may be more appropriate to lay another assault charge, such as under section 9 of the Summary Offences Act or section 196 of the Crimes Act.

Question 9

Assault with a weapon (section 202C Crimes Act 1961)

Answer 9

You must prove the identity of the suspect and that they:
• in assaulting any person,
• used any thing as a weapon;
or
• while assaulting any person,
• had any thing with them
• in circumstances that prima facie showed an intention to use it as a weapon.

Note: The phrase used is any thing. Any thing could include a baseball bat, which can be deliberately used to swing at people, with the intent to assault.

Question 10

Assault with intent to injure (section 193 Crimes Act 1961)

Answer 10

You must prove the identity of the suspect and that they:

• with intent to cause actual bodily harm
• assaulted any person.

It is not necessary that the intended harm (injury) occurred, nor is it necessary that the person assaulted is the person the defendant was actually intending to injure.

Consent will be a defence to a charge under this section unless the assault takes place in the course of a consensual fight or there are other “good policy reasons to forbid it” – R v Lee [2006]

Question 11

Common assault (section 196 Crimes Act 1961)

Answer 11

You must prove the identity of the suspect and that they assaulted any person.

For example, common assaults best dealt with under the Summary Offences Act range from things like a simple push or a threat to assault someone, through to something like a punch that causes only minor injury or minor abrasions or bruising.

The range of Crimes Act common assaults, on the other hand, may start at a punch that causes a major swelling or bruising, or that knocks a tooth out. A number of punches that cause more than a trifling, but not serious, injury would also constitute a Crimes Act common assault.

Question 12

Common assault (section 9 Summary Offences Act 1981)

Answer 12

You must prove the identity of the suspect and that they assaulted any person.

Note: The elements of common assault are the same in both the Summary Offences Act and the Crimes Act. The difference lies in the nature of the assault.

Question 13

Ill-treatment or neglect of child or vulnerable adult (section 195 Crimes Act 1961)

Answer 13

You must prove the identity of the suspect and that they are a person who:
• has actual care or charge of the victim, or
• is a staff member of any hospital, institution, or residence where the victim resides.

• Intentionally engaged in conduct that, or omits to discharge, or perform any legal duty, the omission of which, is likely to:
• Cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.

Note: A child for the purpose of the section is a person under the age of 18 years.

Where the victim is aged 18 or more it will also need to be shown that they were unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw from the care or charge of another person.

Question 14

Actual care or charge

Answer 14

Actual care or charge are not defined in legislation, but case law indicates:
the meaning of the words is a question of law whether the accused had actual care or charge is a question of fact.

Facts of each case will consider legal, temporary or permanent relationships and the right to the actual care of a child or vulnerable person.

Question 15

Likelihood of harm means..

Answer 15

Actual suffering, injury, adverse effects to health or mental disorder or disability need not be proved, only its likelihood. This requires a real or substantial risk of one or more of the proscribed harms, rather than any assessment or balancing of the probabilities – R v Hende [1996]

Question 16

Failure to protect child or vulnerable adult

Section 195A Crimes Act 1961

Answer 16

This charge is best reserved for situations involving a pattern of physical ill-treatment and neglect over a period of time.

You must prove the identity of the suspect and that they are:
• a member of the same household as the victim; or
• a person who is a staff member of any hospital, institution, or residence where the victim resides had frequent contact with the child or vulnerable adult (the victim) knew the victim was at risk of death, grievous bodily harm, or sexual assault as the result of:

• an unlawful act by another person; or
• an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care
expected of a reasonable person to whom that legal duty applies
• fails to take reasonable steps to protect the victim from that risk.

Note: A person may not be charged with this offence if they were under the age of 18 at the time of the act or omission.

Question 17

Disabling (section 197 Crimes Act 1961)

Answer 17

You must prove the identity of the suspect and that they: wilfully and without lawful justification or excuse, stupefied or rendered unconscious any other person

Question 18

Discharging firearm or doing dangerous act with intent - intent to cause grievous bodily harm (section 198(1) Crimes Act 1961)

Answer 18

You must prove the identity of the suspect and that they with intent to do grievous bodily harm:

• discharged any firearm, airgun, or other similar weapon at any person, or
• sent or delivered to any person, or put in any place, any explosive or injurious substance or device, or
• set fire to any property.

Section 198(1)(a) requires intention to shoot at the person and the discharge of the weapon. Recklessness, rather than intention to shoot a person is not enough.

Question 19

Discharging firearm or doing dangerous act with intent - intent to injure (section 198(2) Crimes Act 1961)

Answer 19

With intent to injure or with reckless disregard for the safety of others:

• discharged any firearm, airgun, or other similar weapon at any person, or
• sent or delivered to any person, or put in any place, any explosive or injurious substance or device, or
• set fire to any property.

Section 198(2) does not require that an explosion be caused. However, it is arguable that prosecution must go further and prove that the explosive in question did, in the circumstances, have the capacity to explode.

Question 20

Injuring by unlawful act (section 190 Crimes Act 1961)

Answer 20

You must prove the identity of the suspect and that:

• their act or omission
• resulted in injury to any person
• in circumstances that if death occurred it would have been manslaughter.

An unlawful act must inevitably be recognised by all sober and reasonable persons as such. As well, as a result of the unlawful act other persons must be
subject to some risk of harm albeit not serious.

Question 21

Injuring with intent to cause grievous bodily harm (section 189(1) Crimes Act 1961)

Answer 21

• with intent to cause grievous bodily harm to anyone

* injured any person.

Question 22

Injuring with intent to injure (section 189(2) Crimes Act 1961)

Answer 22

• with intent to injure anyone, or with reckless disregard for the safety of others:
• injured any person.

The difference between sections 188 and 189 is that the final result of the assault in the section 189 offence is only injury.

Consequently, the penalties are less severe under section 189 than section 188.

Question 23

Using a firearm against a law enforcement officer (section 198A(1) Crimes Act 1961)

Answer 23

The suspect used any firearm in any manner:

• against a constable, traffic officer or Prison officer acting in the execution of their duty
• knowing, or being reckless as to whether, that person is a constable, traffic officer or prison officer.

Note: Using in any manner means the firearm is physically used, and includes when used as a club.

Presenting the firearm at the officer, let alone discharging the weapon, is not needed. The accused must handle or manipulate the firearm in
some way to convey the implied threat of its use.

Using any firearm in any manner whatsoever includes removing a sawn-off shotgun from a bag when confronted by a police officer – R v Swain (1992).

Question 24

Using a firearm to resist arrest (section 198A(2) Crimes Act 1961)

Answer 24

The suspect used any firearm in any manner:

• with intent to resist lawful arrest or detention of themselves or any other person.

Question 25

Commission of a crime with firearm (section 198B Crimes Act 1961)

Answer 25

The suspect in committing any imprisonable offence, used any firearm, or while committing any imprisonable offence has any firearm with them:

• In circumstances that prima facie show an intent to use it in connection with the imprisonable offence.

The courts have indicated that “having with him a firearm” requires “a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him” – R v Kelt [1977].

Mere possession is insufficient; there must be accompanying circumstances showing prima facie intention to use the firearm. Prima facie has its ordinary meaning, that is, on the face of it, as at first appearance or first sight.

“‘Prima facie circumstances’ are those which are sufficient to show or establish an intent in the absence of evidence to the contrary” – Tuli v Police (1987)

Question 26

Wounding with intent to cause grievous bodily

harm (section 188(1) Crimes Act 1961)

Answer 26

The suspect with intent to cause grievous bodily harm to anyone:
• wounded, or
• maimed, or
• disfigured, or
• caused grievous bodily harm to
• any person.

The use of the word “causes” means the offender’s actions were responsible for the harm.

It is not material that there is no great harm caused to the victim. It is sufficient that there was an intent to do grievous bodily harm and that harm resulted – R v Hunt (1825).

Question 27

Wounding with intent to injure (section 188(2) Crimes Act 1961)

Answer 27

The suspect with intent to injure anyone, or with reckless disregard for the safety of others:
• wounded, or
• maimed, or
• disfigured, or
• caused grievous bodily harm to
• any person

Question 28

Reckless disregard notes…

Answer 28

Section 188(2) outlines two types of culpability, drawing a distinction between someone who:

• acts intending to cause harm (intent), and
• may not necessarily intend harm but is aware of such risk and acts anyway (reckless disregard).

Examples of reckless disregard could include:
• Allowing a child to ride on a tractor that is not designed to carry passengers.
• A person extinguishing the lights in the stairway to the street and throwing an iron bar across the exit door at the end of a theatre performance. In the almost total darkness panic ensues and two members of the audience are seriously injured.

Note: The difference between subsections 188(1) and 188(2) relates to the suspect’s intent when doing the act that caused the injury. This difference is reflected in the penalties.