Offences Not Built On Assault

Question 1

Third group of offences non fatal non sexual → but not assault.

Question 2

Organisation of interpersonal violence offences (non-fatal, non-sexual):

Answer 2

•Section 196 – common assault (no harm – unwanted touching) and aggravated assaults (ss 192-194, 194A, 202C)
•Crimes of interpersonal violence not built on an assault – eg ss 188-189

Question 3

–Degrees of bodily harm: actual bodily harm, grievous bodily harm
–Technical types of bodily harm (not measured by degree of harm): eg wounding, stupefying, maiming, disfiguring

Answer 3

Interpersonal offences that have nothing to do with assault → degree of harm → more serious offences → degree of bodily harm, or type of harm.

Either talking about the degree of harm → GBH (most serious), or ABH (lesser form).

Actual bodily harm → more than trifling, but not really serious.

Range between not that serious and just under really serious.

Degrees of harm and technical types of harm →

Finish Interpersonal violence offences → non fatal and non sexual → third type → ones not built on assault.

Built on either the degree of harm → or the technical types of bodily harm.

Question 4

Bodily Harm?

Answer 4

•Something that interferes with the comfort or health of the victim
•Parameters of a person’s body

• cutting off a person’s hair has been held to be ABH even though hair regrows DPP v Smith (2006)

The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties… Accordingly the phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress or panic, nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition…” (R v Chan-Fook (1994) 1 WLR 689 cited with approval in R v Mwai [1995] 3 NZLR 149)

When talking about interpersonal violence offences not built on an assault → don’t go through assault process.

All about the degree of bodily harm or the type of bodily harm → bodily harm → interferes with the comfort or health of the other person.

When talking about bodily harm will include the parameters of someones body.

Includes hair → but can’t include clothing, not like an assault which is the person.

Won’t include clothing more serious.

Bodily harm → does include is capable of including psychiatric injury.

UK case Chan Fook → judges say actual bodily harm includes all parts of the body responsible for mental and other faculties

Can actually include psychiatric injuries → has to be clinically recognised injury, not just angry, or sad.

R v Mwai in NZ in Obiter → allowed that bodily injury would include psychiatric injury perhaps. → but hasnt been tested in NZ.

In Mwai case only said in obiter.

Question 5

R v King (2003) 59 NSWLR 472; Damage to foetus = bodily harm to mother:

Answer 5

A focus on the different genetic makeup of the foetus appropriate when one is considering the identity of a “person” for the purposes of the law of homicide
Not appropriate for assault: “I find [the connected tissue] approach compelling for the law of assault… The close physical bond between the mother and the foetus is of such a character that, for the purposes of offences such as these, the foetus should be regarded as part of the mother.”

Argument about whether harm to fetus can be equated to harm to the mother →

Homicide → human beings → capable of being independent of the mother

In the context of interpersonal offences that are not fatal → in Australia case King → asked whether injury to foetus could equate to the serious bodily injury of the mother.

She was punched and kicked by the defendant, she suffered only bruising, not enough to equate SBI, but a blood clot occured and foetus died as a result.

In the case of this bodily injury they say that because of the connection between mum and foetus due to connected tissue. So harm to unborn can be equated to harm to the mother → harm that was caused to the foetus was equated to being bodily harm for her.

Question 6

Degrees of bodily harm:

Answer 6

•Section 2(1) “to injure means to cause actual bodily harm”
•Actual bodily harm = harm that is neither trivial nor serious
•Grievous bodily harm = “really serious bodily injury.”
•Question of fact for the jury as to whether ABH or GBH.

Interpersonal violence offences not built on assault. → built on degrees of bodily harm or types of bodily harm.

When talking about degrees of bodily harm → we tend to talk about actual bodily harm in terms of GBH.

Jury decides whether it is ABH or GBH. GBH (more serious), ABH (less serious).

ABH → more than trifling, but not serious → in the legislation it is referred to as injury → in the CA we talk about to injure.

When talking about injury → they say injury means actual bodily harm .

Injury → ABH → more than trifling but not serious.

When you see reference to GBH case law states that means really serious bodily injury.

Question 7

Organisation of interpersonal violence offences (non-fatal, non-sexual):

Answer 7

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

Interpersonal violence offences are about technical types of harm → types of harm not about degree but the type of harm.

Question 8

Wounds:

Answer 8

•Breaking of the skin or skin like membrane.
•R v Scott; R v Lewis [2007] NZCA 589: rupturing of internal skin can amount to a wound.

For example wounding → can be nicking finger, or using a knife to stab someone in abdomen → not about seriousness, about the type of harm. Just means breaks the layer of the skin.

For example if punch someone, whether it is wounding or not will be decided if you ruptured membrane of skin.

May punch someone and causes internal bleeding → only assault if skin type membrane been broken internally.

Question 9

Maims:

Answer 9

•“Maim means an injury to the body which causes a loss of all or part of a limb or otherwise deprives a person of the permanent use of all or part of a limb.”
R v Burr [2022] NZHC 1351

Maim → means injury to body which casuses the loss of a whole or part of a limb or deprives….

For example cut finger off, losing hand, leg.

Also could be depriving someone of permanent use of that limb

Question 10

Disfigure:

Answer 10

•Deform, deface, mar or alter the figure of appearance of a person: R v Rapana (1988) 3 CRNZ 256.

Offences that require “injury” to the victim

Disfiguring → Case of Rapana → Tattoo forcibly put onto their face, and to disfugure means to deform someone, alter appearance of someone.

Could permanently disfigure them or could be temporary for disfiguring → wounding maiming, disfiguring, are all types of harm.

Not about seriousness, about the type of harm being inflicted.

Second lecture start:

Third type of offences → not built on an assault but built either on the type of harm (require wounding or maiming for example), or level of injury (bodily harm, GBH).

To injure → section 2 → states to injure means actual bodily harm → Injure means ABH.

Serious level → GBH → really serious harm.

Question of fact as to whether it is ABH or GBH, and there is a lot of harm that will go in the middle.

To injure or cause ABH → the Courts state it is being more than trifling or more than trivial bodily harm. → all the way up to something that is just less than GBH → wide range.

Then GBH →

Offences where actus reus is to injure → ABH → more than trivial or trifling but not really serious.

Question 11

Section 189: Injuring with Intent:

Answer 11

(1)Everyone is liable to imprisonment for a term not exceeding 10 years who, with intent to cause grievous bodily harm to any one, injures any person.
(2) Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any one, or with reckless disregard for the safety of others, injures any person.

Common provision

Ss 1 or ss2 → is about whether we injure another person → so actus reus is ABH for both ss1 and ss2.

Distinction → 189 (1) is more serious. → what makes it more serious is because of the intention → the difference comes on mens rea requirement, (1) requires intention of GBH even if they cause ABH, for (1) requires them to have intention to cause GBH as their mental element

(2) → intention is one option but lower level, intend to injure (ABH), or they are reckless in disregarding the safety of others →

Intention most serious, then recklessness.

Question 12

In effect three different offences (injuring with intent s189):

Answer 12

•Injuring, with intent to cause GBH
•Injuring, with intent to injure
•Injuring, with reckless disregard for the safety of others

(1) → when someone actually causes ABH → with higher level of mens rea for GBH

(2) → they injure, but do so with intention to injure or with reckless disregard.

Difference between the two ss is the mens rea.

Question 13

Section 191: Aggravated injury

Answer 13

(2) Everyone is liable to imprisonment for a term not exceeding 7 years who, with 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 –
injures any person.

(2) → 191 → serious aggravated injury

Actus reus → when you injure somebody → actus reus is just causing ABH → trifling to just under serious harm

What aggravates this is the mens rea → under 191 (2) → liable for 7 years if they do a, b, or c with intention → if they intend a, b, or c.

Mens rea → is the intent to commit or facilitate an imprisonable offence, or avoid detection, or avoid arres → so intend to do a, b or c → and while doing this you injure someone

The aggravating element is that you have the intention to do something in a, b or c.

Question 14

Section 190: Injuring by unlawful act:

Answer 14

•
•Every one is liable to imprisonment for a term not exceeding 3 years who injures any other person in such circumstances that if death had been caused he would have been guilty of manslaughter.

Section 190 → also requires as actus reus an injury (ABH)

They have to cause ABH → If someone does something that might have caused the death of somebody, and only injured someone, can punish them for up to three years.

Actus reus → to injure → but doing it in the circumstances that if they had been more successful they would have caused the death of somebody → capturing liability of people who might have caused the death of somebody but only ended up injuring them

Adding a form of criminal negligence in a way.

Question 15

Offences that require a wounding, maiming, disfiguring or the causing of grievous bodily harm:

Answer 15

Group of offences and statutory provisions. → have to get familiar with statutory provisions

Have actus reus of injury → and other provisions are wounding, maiming, disfiguring or causing GBH.

Next provisions is where actus reus is the technical type → or where they actually cause GBH.

Question 16

Section 188: Wounding with intent:

Answer 16

(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

188 → important provision

Ss1 and ss2 → Share same actus reus, either someone has wounded, maimed or disfigured, or cause someone GBH (really serious harm).

What distinguishes them is the mens rea → in section 188 (1) → actus reus same → intention is to cause GBH. In the wounding the maiming or disfuguring → have to have the GBH intention → serious offence, because intend to cause other person GBH. → With intention to cause GBH end up causign them GBH or the above actus reus.

Ss2 → has the same actus reus above → but here under ss2 when we do one of those forms we do it with the intent to injure → Cause ABH → or do the actus reus with reckless disregard of the safety of the other.

Question 17

In effect three different offences (wounding with intent s188):

Answer 17

•Wounding, maiming, disfiguring or causing GBH, with intent to cause GBH
•Wounding, maiming, disfiguring or causing GBH, with intent to injure
•Wounding, maiming, disfiguring or causing GBH, with reckless disregard for the safety of others

(1) With intent to cause GBH

(2) either with intent to injure, or we do it with reckless disregard for the safety of others.

Whole range of levels of harm → because wounding → can be quite a minor thing → type of technical harm that can encompass minor harm and major harm as it can just be a cut

Then at the other spectrum we can have GBH so really serious harm → because (1) and (2) share the same actus reus → what is distinguishing it is the mens rea → for (1) it is the intent to cause GBH → whatever actus reus your intention must be to cause GBH.

But (2) is reckless disregard or intended to cause injury which is lower (ABH) not really trifling but not really serious harm.

Question 18

Section 191: Aggravated wounding

Answer 18

(1) Everyone is liable to imprisonment for a term not exceeding 14 years who 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 –
wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.

191 → (1) is more serious, up to 14 years.

(2) → about causing injury.

191 (1) → the actus reus is wounds, maims, disfugures or causes GBH, or stupefies or renders unconscious any other rperson

Stupefy → administer something to someone which would alter their level of consciousness → alter their mind so they are not completely unconscious but not in control of what they are doing. For example alters consciousness so i am able to commit a crime.

Actus reus → many actus reus → can be wounding, maiming, disfuguring, causing GBH, by stupefying, rendering unconscious.

Under 191 (1) → they have to have done the actus reus with the intent to do either para a, b or c.

When they cause one of those actus reus → have to do it with intent of facilitating the commission of offence, avoid detection, or avoid arrest → intending to do this, and cause one of the actus reus.

Serious offence → because mens rea in relation to a, b or c → and end up wounding maiming, or causing GBH etc.

When you look at the ABH that is caused, whether wounding, maiming, etc → whatever the actus reus → the Courts say you have to have mens rea for the actus reus as well.

Require a mens rea in relation to intention to do a, b and c → and Courts have also read in a mens rea requirements in relation to the injury that is caused → CAN BE EITHER INTENTION OR RECKESSNESS for these actus reus’s.

Question 19

Offences based on particular dangerous activities

Answer 19

Move on to a group of statutory offences based on more dangerous activities.

Question 20

Section 197: Disabling:

Answer 20

•Everyone is liable to imprisonment for a term not exceeding 5 years who, wilfully and without lawful justification or excuse, stupefies or renders unconscious any other person.

Section 197 → to disable someone, penalty of 5 years.

Where someone wilfully stupefies or renders unconscious any person.

Wilfully → old fashioned way of intentionally.

Lawful justification → without a defence

197 → intentionally, without a defence, stupefy’s or renders unconscious another person.

Question 21

Stupefies (s197)

Answer 21

R v Sturm [2005] 3 NZLR 252: Produce an effect on a person’s mind or nervous system that seriously interferes with that person’s mental or physical ability to act in a way that might hinder an intended crime.

Courts couldn’t get head around stupefy

At one point though just knock someone out completely → narrow meaning

Under 197 → it says stupefy or render someone unconscious → stupefy could be less → this is affirmed in the case of Stern → gave drugs to male complainants, and altered their level of understanding of what is going on and committed a number of sexual indecencies → tried to argue that stupefy means making them unconscious → but Court said stupefy means can produce through drugs to produce effect on someone else’s mind that impairs that persons mental or physical body to hinder the intended crime so they cant resist and stop the crime from happening.

Stern → stupefy doesn’t have to mean rendering unconscious → it can be but it doesn’t have to be → can be level of affecting someone’s mind or nervous system in a way less than unconsciousness.

Doing something to someones mind or nervous system where they cant stop the crime. Or being unconscious (s 197).

Question 22

Section 189A: Strangulation or suffocation:

Answer 22

7 years imprisonment for anyone who:
. Intentionally or recklessly impedes another person’s normal breathing, blood circulation or both, by doing (manually, or using any aid) all or any of the following:
(a)Blocking that other person’s nose, mouth, or both:
(b)Applying pressure on, or to, that other person’s throat, neck, or both

Since the end of 2018 → introduced into CA a new offence of strangulation or suffocation.

Strangulation wasn’t treated as seriously before.

189A → upto seven years → where they intend or recklessly, impede another persons breathing or blood circulation or both, either manually, or using other aid, that blocks persons nose mouth or both, or applies pressure onto neck mouth or both.

Question 23

Section 189A:

Answer 23

Actus reus
•Blocking another person’s nose and/or mouth or applying pressure to another person’s throat and/or neck (either manually or using any aid);
•The blocking or pressure has the effect of impeding that person’s normal breathing and/or blood circulation

Blocking, pressure has affect of impeding persons normal breathing or blood circulation

Either intended to or was reckless.

Question 24

Section 189A:

Answer 24

Mens rea
•The defendant has the intention of blocking another person’s nose and/or mouth or applying pressure to another persons throat and/or neck; and
•The defendant has the intention to, or is aware of the risk of, impeding the other person’s breathing and/or blood circulation

Question 25

Section 201: Infecting with disease:

Answer 25

•Everyone is liable to imprisonment for a term not exceeding 14 years who, wilfully and without lawful justification or excuse, causes or produces, in any other person any disease or sickness.

Group of offences with regard to wilfully (intentionally) infecting others with disease.

Imprisonable for up to fourteen years. →

where someone intentionally cause or produce in any other person disease or sickness.

Doing it deliberately → intentionally.

Set out with purpose → for example purposefully infecting others with HIV.

Section 201 → deliberately doing it.

Mwai case relevant

Question 26

R v Mwai [1995] 3 NZLR 149:

Answer 26

•Infecting a sexual partner with HIV: s 188(2); causing GBH with reckless disregard for the safety of others (but see Filitonga v R [2017] NZCA 492: Medical advances in the response to HIV might persuade a jury that HIV infection is not GBH.
•Not infecting someone with HIV but exposing them to risk of contracting HIV: s 145 based on a breach of s 156. Omitting to exercise reasonable care in relation to infected seminal fluids (failure to wear a condom) knowing that omission “would endanger the life, safety or health of any individual.”

Usually happens in context where it is not someones intention to produce a disease in anothe person.

R v Mwai → situation is unprotected sex with other people, it hasnt been deliberate aim or intention to cause other to get HIV and get sick, but through their actions that person has contracted HIV.

Mwai → defendant had five different complainants, two of them contracted HIV from him and other three were exposed to the risk of it.

Wasn’t a case of section 201 → because no intention → but had been very reckless

Had not used condom for example → had not taken reasonable precautions

In NZ we deal with this through s188 (2) → cause GBh with reckless disregard of their safety → actually infect other person with HIV → inflicted onto other person

Inflicting this HIV is causing GBH and done so recklessly so section 188 (2) liability.

Mens rea → done with reckless disregard.
Actus reus → given HIV

In 1995 → no medical advances for HIV → much more medical advances where can live a healthy life with HIV.

Talked about in the case of Filitonga → where someone passed on recklessly their HIV and havent informed the other they have HIV and havent used a condom.

Filitonga → medical advances in relation to HIV means a jury may not see HiV amounting to GBH. Jury may determine that HIV with reckless disreagerd could be just injury (ABH).

In NZ → hasnt told person of HIV, not using condom → and tended to use section 188 (2) where person has contracted illness.

Filitonga → may be up to jury to say it is not GBH anymore. → may be it is ABH.

Can still have liability when you expose someone to the risk of HIV but doesnt pass on to them → by luck dont get HIV → Cant be a s188 because no transference → But how we deal with this is through s 145.

S145 → criminal nuisance → doing something that is interfering with the health of someone else → can be based on an omission → failed to do something, that then exposes someone else that is going interfere with their health → and omission found under s156 → failure to take reasonable care → failure to use condom → when in charge of dangerous thing (seminal fluid with HIV), and exposing someone to the risk of that, and fail to take reasonable care (use condom), come under 156, then can be used for criminal nuisance under s 145.

Distinction between how we treat cases where HIV is contracted, or just exposing the risk of it contracting.

If it contracts → then 188 → note filitonga as well.

Just exposed to risk → go through criminal nuisance, section 156 duty.

Question 27

Is family violence addressed by the criminal law on interpersonal violence?

Answer 27

3rd of December → changed legislation on how we respond to violence.

Within Criminal law space → had three new offences → assault on family member, strangulation, coerced marraige.

Question 28

Family Violence (Amendments) Act 2018:

Answer 28

•Came into force on 3 December 2018
•Amended the Crimes Act 1961 to introduce new offences of:
– assault on a family member (194A)
– strangulation or suffocation (s 189A)
–coerced marriage or civil union (s 207A)

Question 29

Section 207A: Coerced marriage or civil union:

Answer 29

“(1) Everyone is liable to imprisonment for a term not exceeding 5 years who, with intent to cause another person to enter into a marriage or civil union, uses coercion (for example intimidation, threats or violence) against that other person.
(2) Subsection (1) applies even if the marriage or civil union –
(a) is not governed by New Zealand law;
(b) is an arrangement or relationship (however described, and even if not legally binding) in the form of a marriage or civil union;
(c) is not solemnised or otherwise completed;
(d) is, or if solemnised or otherwise completed would be, void, or not legally binding (for example, for lack of consent, absence of formality, or non-compliance with a legal requirement).”

Does not need to result in the marriage or civil union → but using coercion through intimidation or threats of violence to force person to enter marraige or civil union.

Question 30

Coerced Marriage or Civil Union:

Answer 30

Actus reus
•Using coercion against another person.
•
Mens rea
•Intending the acts of coercion; and
•Intending that the coercion cause the person to enter a marriage or civil union.
•
But no need for person to actually enter marriage or civil union.

•But interpersonal violence offences are charged as separate incidents; not about managing a pattern of harm over time
•Understanding that family violence is not a series of isolated incidents affecting an individual victim
•Rather it is a pattern of abusive behaviour used by an identifiable individual that can encompass multiple victims (children and adults) – past, current and future.
•Victims of family violence can use violence
- Importance of primary victim/predominant aggressor analysis:
A predominant aggressor is the party who is the most significant or principal aggressor in the relationship (although they may not be the first person to use violence on any particular occasion).

Problem we have is we charge them as seperate instances → still respond as individual instances not a chain of harm.

Need to see them as patterns of harm.

Family violence → who is the predominant aggressor, and who is the victim?

When responding → need to see who is the principal, as victim can be violent as well in response.