Non Fatal Offences

Only available on StudyMode
  • Download(s) : 116
  • Published : April 26, 2013
Open Document
Text Preview
10/1/08

INTRODUCTION
 NON‐FATAL
OFFENCES
OF
 VIOLENCE

•  Defined
in
Part
8
Crimes
Act
1961.
–Crimes
Against
the
 Person.
 •  Here
concerned
to
look
at
crimes
falling
short
of
murder
or
 manslaughter.
 •  Sexual
offences
defined
in
Part
7
CA
1961.
 •  Offences
within
Part
8
include:
 •  Homicide
(ss158
‐181)
 •  AborTon
(ss182
–
187A)
 •  Assaults
to
the
person
(ss
188
‐204)
 •  Female
genital
muTlaTon
(ss
204A‐204B)
 •  Bigamy
(ss
205
–
207)
 •  AbducTon
(ss
208
–
210A)

 1
 2


Assault

•  
A

generic

offence
covering
a
broad
range
of
 •  •  •  •  conduct.
(unconsented
to
kiss
to
grievous
physical
 a\ack).
 Injury
not
a

necessary

element
of
assault.
 IncorporaTon
of
concepts
of
“assault”
and
“ba\ery”.
 Assault

may
include
ba\ery,
but
ba\ery

must

 involve
some
applicaTon
of
unlawful
force,
whether
 direct
or
indirect.
 Assault
may
be
saTsfied
by
a

threat
to
inflict
 unlawful
force
on
another.
 3


Assault
(cont)

•  Words
alone
cannot
consTtute
an
assault,
but
 walking
towards
someone
making

indecent
 suggesTons
may
be
an
assault
(see
Fogden
v
 Wade
[1954]
NZLR
724).
 •  Assault
on
basis
of
threats
and
gestures
alone
 possible
because
of
way
assault
defined
in
 Crimes
Act
1961.
 •  

 4


1

10/1/08

DefiniTon
of
Assault

•  S
2
Crimes
Act
1961:
 •  “Assault
means
the
act
of

intenTonally

 applying

or

a\empTng
to
apply
force

to
the
 person
of
another,
directly
or
indirectly,
or
 threatening
by
any
act
or
gesture
to
apply
 such
force
to
the
person
of
another,
if
the
 person
making
the
threat
has,
or
causes
the
 other
to
believe
on
reasonable
grounds
that
 he
has,
present
ability
to
effect
his
purpose.”

 5


Threat
need
not
be
communicated

•  
R
v
Kerr

[1988]
1
NZLR
270
–Accused
seen
to
approach
 V
while
holding
axe
at
waist
level.
 •  Held.
Made
no
difference
that
V
unaware
of
threatening
 display,
because
state
of
mind
of
recipient
of
threatening
 act
or
gesture
is

not
a
relevant
consideraTon.

 •  QuesTon:
would
there
have
been
an
assault
if
V
had
seen
 D
(with
his
trousers
down!)
and
laughed
at
him?
 •  R
v
Melaragni
(1992)
75
CCC
(3rd)
546
–
Where
bullet
 misses
intended
vicTm
and
V
unaware
of
being
shot
at,
 firing
gun
in
direcTon
of
V
an
assault
under
Criminal
 Code.
 6


When
is
assault

not

present?

•  (1)
Where
threatener
at
such
a
distance
 impossible
for

threat
to
be
actualised.
 •  (2)
Where
D
lacks
“present
ability
to
effect
his
 purpose”.
 •  (3)
Where
threatened
person
has
no
belief
on
 reasonable
grounds
that
D
has
ability
to
effect
 his
purpose.
 •  (4)
Where
there
is
no
means
of
carrying
the
 threat
into
effect.
 7


Mens
rea

•  At
common
law
assault
may
be
commi\ed
 intenTonally
or
recklessly.

 •  See

R
v
Venna

[1976]
QB
421
–Held
physical
 injury
inflicted
deliberately

or
recklessly
on
a
 police
constable
a\empted
to
arrest
D
amounted
 to
assault
occasioning
actual
bodily
harm.


 •  Under
CA
definiTon,
threatened
applicaTon
of
 force
must
be
done
“intenTonally”.
Recklessness
 insufficient
for
assault
in
NZ.

 8


2

10/1/08


No
intenTon
to
carry
out
assault

•  No
assault
where
threatening
gesture
 accompanied
by
words
indicaTng
no
intenTon
to
 carry
out
the
threat.
 •  Tuberville
v
Savage

(1669)
–
D
puts
hand
on
 sword
saying
“
If
it
were
not
assize‐Tme,
I
would
 not
take
such
language
from
you”.
 •  Held
no
assault
because
words
showed
D
did
not
 intend
to
assault
V,
despite
menacing
gesture.
 But
–
a
present
condiTonal
threat

may
be
an
 assault.
“If
you
come
a
step
closer
I’ll
stab
you.”
 9


Unlawful
force

•  Any
element
of
force
sufficient.
 •  Expression
“
force
to
the
person
of
another
person”
 given
wide
interpretaTon.
 •  “Force”
does
not
necessarily
imply
violence.

 •  R
v
Raponi
(1989)
5
CRNZ
291‐
“A
mere
touching
can
 amount
to
an
assault”.
 •  R
v
Terewi
(1985)
–”Force”
held
to
include
the
threat
 to
use
physical
power,
in
context
of
self‐defence.
 •  Touching
as
part
of
social
greeTng

not
assault
...
tracking img