Crim: Non-Fatal Offences Against the person

problem Q engine for Non fatal offences

1. list every act and every victim

2. Ladder the charges → start at the bottom and climb only as far up as the facts and intent allow

3. Assault elements (s 2) → pick the limb:

• Actual application of force, direct or indirect

• Attempted application of force

• Threat by action or gesture, where D has present ability to carry it out

• Threat by act or gesture, where V believes on reasonable grounds that D has present ability

4. for each limb above check the following:

• Intention → a threat must be intentional and directed at a person, not property (Lazarus) → recklessness is never enough for assault (R v Young, cited in Narayan)

• Unlawfulness → consider the generally accepted conduct exception (Wilcock) as applied in Thompson and cooney. The crown must prove beyond reasonable doubt that the touching was not generally acceptable conduct

• Unintended victims → consider transfered malice (Latimer) or innocent agency (Narayan)

5. Harm thesholds

• injure: actual bodily harm, meaning ham that interferes with health or comfort, and is more than trifling (s 2; Scott).

• Wound: a break in the continuity of the skin, which may be internal (waters; Scott)

• Disfigure: need not be permanent (Rapana)

• GBH: “really serious harm”, judged by the jury objectively (waters; Vincent). it can be delayed, for example HIV (Mwai). It includes really serious psychiatiric injury, but only with specialist evidence (Mwai).

6. infer intent from circumstances:

• admissions and threatening words before, during or after;

• the weapon used;

• the force and number of blows;

• the number of attackers;

• where the blows were directed (head, torse, vital areas);

• whether the attack was persistent or stopped;

• any motive

→ where intent to cause GBH is doubtful, fall back to lower intent

7. Kidnapping:

• Taking away or detention

• unlawfulness

• non consent (child under 16 cannot consent, s 209A) or consent obtained by fraud or duress

• de minimis?

• intentional taking or detention

• knowledge or recklessness as to non-consent

• ulterior intent: (a) ransom or service; (b) confinement or imprisonment; [c] sending or taking out of NZ

8. Choose the charge that accurately reflects the seriousness of the offending and gives the court an adequate basis for sentencing (solicitor-generals prosecution guidelines)

what are the four limbs of assault in s 2

1. Actual force, direct or indirect

2. attempted force

3. threat with present ability

4. threat with a reasonable belief in present ability

is recklessness enough for assault

no (young), it requires intention

what is the minimum force required for an assault

the slightest degree of force

can touching clothing be assault

yes (Thompson; Steffens)

what is the Collins v Wilcock exception

Contact generally acceptable in the ordinary conduct of daily life

why wasnt removing the beanie within the exception (Thompson)

V attention was already engaged; the motive was to deter her; both parties reactions showed it was not everyday conduct; were in a altercation

• Context becomes quite relevant in assessing whether its geuinely acceptable conduct, each case the judge considers the context in which the touching occurred, and possibly the context can turn the same physical application into force

• The context of being in a argument about the cat feeding, gave a diferent view of the intentional application of force grabbing the hat, shows diferent contexts how it is used

why did cooney succeed on appeal

it was a fleeting touch to gain attention, using no more force than necessary

• Idea that at the point of touching the conversation had become hostile, and she had been rude and inappropriate in asking the complainant where was she from (normally asked in a pretty rude way). -> thus when touching district court judge found that it constituted a assault

• However in the HC the judge found contrary, because of that the jidge found the context doesn’t turn what they viewed as a generally acceptable action into a assault

 

• Good example to use for what an appropriate touch might look like in a exam

 

Who must ptove the contact falls outside the exception

the crown, beyond reasonable doubt

what is the diference between direct and indirect force

• direct is by D own body

• indirecy is through some remote instrumentality (Kovalev)

Give 3 examples of indirect force

1. spitting (Cotesworth);

2. acid in a hand dryer (DPP v K);

3. force through an innocent child (R v S)

what were the two routes to liability in Narayan?

• Innocent agency/indirect force

• transfered malice

Does transfered malice apply even if the punch hit the intended victim too

yes (Latimer;Narayan)

are words or agitation alone enough

no, there must be an act or gesture (Goffe)

must V be aware of the threat

no (kerr: the axe over woman lying face down)

what was the proper charge in Lazarus

injuring with reckless disregard

what made Fagan v Wade an assault

Conduct plus words showing a sinister purpose, V’s reasonable belief in present ability, and no touching needed

what does “injure” mean

cause actual bodily harm: more than trifling interference with health or comfort

what is a “wound”

a break in the continuity of the skin, internal or external (waters;Scott) → usually evidenced by blood

is an intra-cerebral haemorrhage a wound

yes (scott)

must a disfifurement be permanent

no (rapana). intent to injure is still a separate element

what is GBH

really serious harm, judged objectively by the jury (waters; vincent)

can GBH be delayed

yes (Mwai: HIV)

Can GBH be psychiatric

yes, if it is a really serious psychiatric injury supported by specialist evidence (Mwai)

what is the difference between s 188(1) and s 188(2) → serious violence

1. requires intent to cause GBH, max 14 years

2. requires intent to injure or reckless disregard, max 7 years

what is the diference between s 189(1) and s 189(2)

• s 189(1) covers anyone who, with intent to cause GBH → 10 years

• s 189(2) covers anyone who, with intent to injure, or with reckless disregard for the safety of others → 5 years

what are the recklessness limbs

• subjective appreciation of the risk

• objective unreasonableness to run the risk anyway

list 6 factors for inferring intent

1. Admissions or threats

2. the weapon

3. force and number of blows

4. number of attackers

5. where the blows were directed

6. persistence and motive

which offences were created for policy reasons (serious violence)

• s 189A strangulation (7 years)

• coward punch offences (s 171A manslaughter, and wounding with intent) for strikes to the head or neck

whay is the s 209 AR (kidnapping)

1. Unlwafully taking away or detaining

2. without consent (or consent obtained by fraud or duress)

what are the three ulterior intents

1. Ransom or service

2. confinement or imprisonment

3. sending or taking out of NZ

who cannot consent

u 16 → s 209A

what does “takes away” mean

compelling V to go where they did not want to go (Davis)

what does “detains” mean

v is hindered, retarded and restrained from proceeding (boyd)

is there a minimum duration (for kidnapping)

no, but de minimis exception for fleeting or trifling restraint, as a matter of fact and degree

is kidnapping a continuing offence

• yes (Reid), this matters for parties

is an accidental taking enough (kidnapping)

no, but continuing, once aware can become intentional (Smith)

what is the MR as to consent

knowledge or recklessness (T v R)

must the ulterior intent be fulfilled

no, it is assessed at the time of taking (Mohi)

what does abduction (s 208) cover

taking for the purpose of marriage, civil union or sexual connection

what are the different types of Assault (s 2) → AR

• applying force (indirect or direct)

• attempting to apply force (indirect or direct)

• Threatening by an act or gesture, having present ability

• threatening by an act or gesture, causes V to believe on reasonable grounds D has present ability

what is the MR for common assault, what is the section, and what is the max penalty

intention as defined in s 2, → 1 year max → s 196

what are the 2 more serious AR for violent offences, and what is the offence section

• Injure (to cause GBH: 2(1)) → offence s 189

• Wounds (breakage of the skin → bleed), maims, disfigure or cause GBH → offence s 188

where in the crimes act do non fatal offences sit

part 8

what is the s 2 definition of assault and what is the general rule

• s 2 → Assault means the act of intentionally applying or attemting to apply force to another, directly or indirectly, or threatening by act or gesture, if person making threat has present ability, or causes the other to believe on reasonable grounds that they have present ability

• General rule → any intentional touching of another person is an assault, no violence or harm is required→ the slightest degree suffices (Thompson → beanie case); (Steffens → hit cap off accidentally hit glasses)

what helps determine is contact is lawful or unlawful

• broadly acceptable by social convention? → as opposed to conduct that is unecessarily intrusive, rude or insulting.

• Context and purpose matter (Thompson → in a altercation/argument → does it point to deterrence)

• societies views change → boundaries open

• prosecution must prove beyond reasonable doubt that an intentional application of force was unlawful

what is the Mental element for Actual or attempted force (Narayan → punched partner holding baby)

• (a) must be an applicaiton of force to the person of another

• (b) it must be intentional

• [c) an accidental or negligent application is not enough

• (d) A reckless application is not enough (R v Young)

• (e) Transfered malice (Chandler; Latimer)

• (f) force can be direct or indirect

That is the requirements for the threat limbs (3) and (4)

• must be an act or gesture

• V awareness is irrelevant (the MR is intending the threatening act, the AR is doing it (Kerr)

• The threat must be intentional and directed at a person, not property (Lazarus)

what does Narayan establish

Guilt could rest on:

• Innocent agency/indirect force: mother was the instrument through which force was applied to the child. On this basis intention towards the child must be inferred, court said it could be

• Transfered malice: the doctrine also applies even where the punch connected with the intended victim.

• Use for cases where there are multiple victims, e.g V2 standing behind or near

what was the Lazarus case (threaterning)

• threat must be intentional and directed at a person, not merely at property

• smashed windows of car with a golf club, following road rage incident

• was not guilty of assault with a weapon → proper charge was injuring with reckless disregard

explain Fogden v Wade

• D made improper advances on young woman (airforce lady) near her hostel, she screamed and ran away

• D conduct coupled with his words made his sinister purpose plain → supports an inference of intentional threat to apply force, she believed on reasonable grounds he had present ability to

• Use when D advances on V with evident intent, and no contact made

what did r v waters establish about wounding

• a wound can be internal (bleeding evidencing a separation of tissue) → GBH means really serious harm

• D banged V face on floor causing heavy bleeding inside her nose

when should R v Scott be used in PQ

when there is a internal bleeding, a brain bleed, or no visible cut → Scott landed about 15 punches onK who was on blood thinners, suffered intra cerebral haemorrhage → convicted of wounding with intent to injure

what did Vincent v R say about the test for serious violence

test is objective, D cant claim i didnt think it was that serious

What does Mwai establish regarding causal link, and the scope of GBH

• Delayed consequences such as HIV counts to, doesnt have to be a immediate causal link

• GBH may include really serious psychiatric injury, only with specialist evidence

• M knew he was HIV positive and had unprotected sex, without warning partners → convicted of GBH with reckless disregard

what does Rapana and Murray say about disfigure

• disfigure does not require permanent

• intent to injure is a separate element

Boyd case brief

• mother at park with baby, B approached her and produced a pocket knife, demanded miney, stood infront of her for about 10-15 minutes, touching her leg and saying come away with me

• Principle: detains means V is hindered, retaded and restrained from proceeding

• court considered the de minimis exception → clear case, standing in v way for 10-15 mins is well beyond fleeting

Davis v R principle

• taking away includes any compulstion of V to go where they did not want to go

what should you ask in exam if there is a second victim

• transfered malice or innocent agency? → Narayan

what is the excalation seen in more serious violence: ss 193,189,188

• consequence (AR) (assault → injure → wound,maim,disfigure or GBH)

• Intent (reckless disregard → intent to injure → intent to cause GBH)

what harm is GBH

Really serious harm (Waters)

what is the overlap between takes away and detained

• most takings involve detention

• not every detention involves taking

what is De minimis (kidnapping)

• no minimum time requirement for kidnapping

• but taking or detention may be so fleeting or trifling → remember to tick off (maybe placing a hand on someones shoulder before letting them continue)

what are the mental elements of kidnapping

1. intentional taking or detention (accidental is not enough → Smith)

2. knowledge or recklessness as to non consent (T v R → recklessness authoirty)

3. Ulterior intent at the time of taking or detention, it need not be fulfilled, relevant time is the moment of taking or detaining (Mohi)

charges table

what is the AR, MR, section and max penalty of → common assault

• s 196 (s 2 assault)

• AR: Assault defined in s 2 → assaults any person (4 varieties)

• MR: Intentional application of force (not recklessness)

• 1 year

what is the AR, MR, section and max penalty of → Assault with intent to injure

• s 193

• AR: assault (4 varieties)

• MR: Intent to injure

• 3 years

what is the AR, MR, section and max penalty of → Injuring with intent/recklessness disregard to saftey of others

• s 189(2)

• AR: injures (causes actual bodily harm)

• MR: intent to injure, or reckless disregard to saftey of other

• 5 years

what is the AR, MR, section and max penalty of → Injuring with intent to cause GBH

• s 189(1)

• AR: injures

• MR: intent to cause GBH

• 10 years

what is the AR, MR, section and max penalty of → Wounding, maims, disfigures or causes GBH with intent/recklessness

• s 188(2)

• AR (consequence): Wounds.. etc

• MR: Intent to injure or reckless disregard

• 7 years

what is the AR, MR, section and max penalty of → Wounding, maims, disfigures or causes GBH with intent to cause GBH

• s 188(1)

• AR (consequnce): wounds…

• MR: Intent to cause gbh

• 14 years

compare common assault to serious violence offences

Yes. The more serious violence offences are result (consequence) offences, while the assault offences are conduct offences. That affects what the Crown has to prove.

Conduct offences (no result needed):

• s 196 common assault, s 193 assault with intent to injure and s 202C assault with a weapon. The actus reus is the assault itself: applying force, attempting to, or threatening. No harm has to result.

• That is why s 193 is useful when D clearly meant to hurt V but no injury actually happened. The intent carries the offence, not the outcome.

Result offences (a consequence must be caused):

• s 189: D must injure (cause actual bodily harm).

• s 188: D must wound, maim, disfigure or cause GBH.

what is the AR, MR, section and max penalty of → strangulation/suffocation

• s 189A

• AR: strangles, suffocates or impedes breathing

• MR: intention

• 7 years

what is the AR, MR, section and max penalty of → Kidnapping

• s 209

• AR: unlawfully (no lawful authority), take away or detain, without consent (or with consent obtained by duress or fraud)

• MR: intentional taking or detention + knowledge or recklessness as to non consent + a purpose in s 209(a)-[c) ulterior intent

• 14 years

assault with a weapon offence

• s 202C, needs a weapon used or carrying