Inter-personal Violence Offences (non-fatal, non-sexual)

What are the 4 types of assault defined under s2?

Applicaiton of force, attempted application of force, a threat to apply force where the accused has the present ability to apply force, a threat to apply force to another which causes the victim to believe on reasonabel grounds that the accused has the present ability to apply such force

What does Collins v Wilcock stand for?

Force can be a mere touching, “the fundamental principle, plain and incontestable is that every person’s body is inviolate”

What does Kovalev v Police stand for (two things)?

Force doesn’t have to be skin-to-skin contact, delivering an electric shock is force + an indirect application of force occurs even though some step by the victim is necessary before the force is applied to their body - in this case the husband rigged a toaster to shock wife when she used it

What does Mitchell v Police stand for?

The accused has to be proactive in making the physical connection with the victim’s body when “applying” force - standing in someone’s way or bracing your body to resist them pushing you is not “applying” force

What does DPP v Smith stand for?

“The person of another” includes hair

Does a victim need to be aware of the treat for there to be a psychic assault?

Common law is that a victim does not need to be aware of being touched for it to be an assault - but there is the caveat of if the psychic assault is causing the victim to believe the threat on reasonable grounds

What does Police v Greaves stand for?

A conditional threat can still be psychic assault if there is still present ability/reasonable ground to believe there is present ability - e.g. in this case holding a knife and threatening to stab if they get any closer

What does Rozsa v Samuels stand for?

When considering whether a condition diffuses a threat and means its not psychic assault anymore - is the condition one the party doing the threatening has the right to impose (e.g. in self defence)? If so, no assault

What does Fogden v Wade stand for?

A threatening act or gesture (not words) can be psychic assault without any attempt at physical contact, it just has to convey a threat to make physical contact - e.g. in that case man walking close to a woman at night and asking her for a quick one was enough

Does a gesture made in the dark still fulfil the requirements for a psychic assault?

Yes

What level of mens rea is required for application of force? What case rules out other ones?

Intention is required, R v Young established that recklessness doesn’t apply

What level of mens rea is required for psychic assault?

An intention to perform the threatening act and an intention to threaten the victim

For there to be an aggravated assault with a weapon, what is the burden of proof to show that the defendant: “has anything with him or her in circumstances that prima facie show an intention to use it as a weapon”? What case established that?

Te Moananui v R - the Crown doesn’t have to prove that intent beyond a reasonable doubt - an objective inquiry

What is the defintion of bodily harm? Does it include psychiatric injury? What case discusses this?

Something that interferes with the health or comfort of the victim, R v Chan-Fook said in obiter that it is capable of including psychiatric injury, but not just mere emotions

What does R v King stand for?

Damage to the foetus is bodily harm to the mother

What is the definition of actual bodily harm?

Harm that is neither trivial nor serious, it does not have to be permanent but needs to be something more than transitory or trifling - pain itself will not suffice

What is the definition of grievous bodily harm? Can it include multiple minor harms? Cite a case

Really seriouos bodily injury, asessed holistically so multiple minor harms altogether may be gbh, R v Golding states that it is the impact on the particular victim that must be assessed?

What does Filitonga v R stand for?

Medical advances in response to HIV might persuade a jury that HIV infection is not GBH

What is the definition of wounds?

Breaking of the skin or skinlike membrane, normally evidenced by a flow of blood - internal bleeding can constitute wounding if a membrane that is analogous with the skin is severed - must be severing of the continuity of skin, can’t just be a cuticle

What is the definition of maims? Cite a case

R v Burr - “maims 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”

What is the definition of disfigures? Cite a case

To deform, deface, mar or alter the figure/appearance of a person - R v Rapana states this covers both permanent and temporary damage as in that case a forcibly given temporary tattoo was disfigurement

Can s190 injuring by unlawful act include an omission? What is the threshold?

Yes - that a reasonable person would have seen the risk of harm

What is the definition of stupefies? Cite a case

Produces an affect on a persons mind which really seriously interferes with that person’s mental or physical ability to hinder an intended crime - in R v Sturm administering ecstasy + speed was enough as it meant they were disinhibited and unlike themselves - doesn’t require complete unconsciousness

What are the actus reus and mens rea for s189A - strangulation/suffocations?

AR: Blocking another person’s nose and/or mouth or applying pressure to another person’s throat and/or neck (either manually or using aid), the blocking/pressure has the effect of impeding that person’s normal breathing/blood circulation (doesn’t need to stop, doesn’t cover applying force to chest) MR: Has the intention of blocking another person’s nose/mouth or applying pressure to another person’s throat/neck; and has the intention to, or is aware of the rrisk of, impeding the other person’s breathing/blood circulation

What does R v Mwai stand for?

Charged reckless infection of others with HIV under GBH with reckless disregard and criminal nuisance, as it couldn’t fall under s201 infecting with disease since he didn’t intend to infect was just reckless

What cases preserve the common law defence of victim consent?

R v Lee and R v Barker

What must be established for the defence of victim consent to be disproven? Cite a case

R v 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

Can the belief in victim consent be mistaken? Cite a case

Ah-Chong v R - an honest but mistaken belief in consent is a defence

What are the two kinds of mistakes that can vitiate victim consent?

Mistake as to the nature of the act, mistake as to the identity of the person who did the act

What is the doctrine of common intercourse? Where are its limits? Cite a case

Boughey v R - Any act reasonably necessary for the common intercourse of life if only done for that purpose and not disproportionate to the occassion will not amount to an assault even when there is no consent - but if you make it clear you don’t want it and they continue to do it it may become unacceptable

When might the defence of victim consent be withdrawn?

Where the level of harm is so severe and undertaken during an activity with so little public utility that consent is withdrawn and no longer legally available

Explain how human rights impact the social utility of an activity, cite a case

Where an activity represents an individual expression of a fundamental human right it is likely to be considered to have high social utility - e.g. Lee where exorcism was a manifestation of religious belief and so protected under NZBORA

Explain how victim vulnerability impacts the doctrine of victim consent, cite a case as an example

Where the victim is vulnerable or there are exploitative circumstances it becomes a less valuable expression of personal autonomy - Barker

What does R v Kerr stand for?

Where there is a psychic assault and the defendant has the present ability to affect their purpose, the victim need not be aware of the threat

What does R v Cey stand for?

Consent is normally subjective, but when it comes to something like team sports consent is implied and must be objective - implied consent to conduct within the standards of the game (regardless of whether it is outside of the rules)

What does R v Lee stand for?

4 tiers of harm - no bodily harm and actual bodily harm (except in cases of street fighting) intended or risked can generally use victim consent as a defence, GBH intended or risked will require the judge to balance personal autonomy, social utility, level of seriousness of injury and reasonableness of consent to determine whether the defence of victim consent is available (but the courts will place a high value on personal autonomy)

What does R v Barker stand for? What about Glazebrook J’s dissenting judgement?

Majority: balancing process of victim consent based on public policy is reserved for cases where GBH is intended of risked. Glazebrook: sliding scale of intended/risked harm, the more serious the more likely that public policy factors will exclude the defence of victim consent, scarification on a child under 16 is an exception to abh having the defence of victim consent available + 17 year old’s vulnerability outweighed personal autonomy

What does S v R stand for?

There is a sliding scale of harm between mere bodily injury and GBH, the defence of consent will rarely be available when GBH is intended and only sometimes available when it is risked, no social utility in deliberate infliciton of serious harm in a domestic relationship, problem of domestic violence in NZ allows for this displacement of autonomy