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
• 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
• Words alone cannot consTtute an assault, but walking towards someone making indecent suggesTons may be an assault (see Fogden v Wade  NZLR 724). • Assault on basis of threats and gestures alone possible because of way assault deﬁned in Crimes Act 1961. • 4
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  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
• At common law assault may be commi\ed intenTonally or recklessly. • See R v Venna  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
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
• 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 ...