Assaults and injuries to the person
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Detailed table of contents
This chapter contains the following topics:
Summary
• Health and safety duties
- Maximising safety and minimising risk
- Health and safety should be an everyday conversation
Definitions
Offences
• Criminal Procedure Act 2011
• Offences and legislation table
• Acid throwing (section 199 - Crimes Act 1961)
• Aggravated assault (section 192(1) - Crimes Act 1961)
• Aggravated wounding (section 191(1) - Crimes Act 1961)
• Aggravated injury (section 191(2) - Crimes Act 1961)
• Assault by male on female (section 194(b) - Crimes Act 1961)
• Assault on a child (section 194(a) - Crimes Act 1961)
• Aggravated assault on Police / person executing a process (section 192(2) - Crimes
Act 1961)
- Section 48 defence
• Assault on police, traffic or prison officer (section 10 - Summary Offences Act 1981)
• Assault with a weapon (section 202C - Crimes Act 1961)
• Assault with intent to commit sexual violation (section 129(2) - Crimes Act 1961)
• Assault with intent to injure (section 193 - Crimes Act 1961)
• Assault with intent to rob (section 236(1) - Crimes Act 1961)
• Common assault (section 196 - Crimes Act 1961)
• Common assault (section 9 - Summary Offences Act 1981)
• Disabling (section 197 - Crimes Act 1961)
• Discharging firearm or doing dangerous act with intent - intent to cause grievous
bodily harm (section 198(1) - Crimes Act 1961)
• Discharging firearm or doing dangerous act with intent - intent to injure (section
198(2) - Crimes Act 1961)
• Failure to protect child or vulnerable adult (Section 195A – Crimes Act 1961)
- Members ‘of the same household as the victim’
- Having ‘frequent contact’
- Knowledge of the risk of harm
- Failure to take reasonable steps to protect the victim
• Ill-treatment or neglect of child or vulnerable adult (section 195 – Crimes Act 1961)
- ‘Actual care or charge’
- ‘Staff member’
- Likelihood of harm
- Intentionally engaging in conduct
- Breach of legal duty
- Act or omission constituting a ‘major departure’
• Impeding rescue (section 204(1) – Crimes Act 1961)
• Infecting with disease (section 201 – Crimes Act 1961)
• Injuring by unlawful act (section 190 - Crimes Act 1961)
• Injuring with intent to cause grievous bodily harm (section 189(1) - Crimes Act 1961)
• Injuring with intent to injure (section 189(2) - Crimes Act 1961)
• Permitting set trap likely to injure to remain (section 202(2) – Crimes Act 1961)
• Poisoning with intent to cause grievous bodily harm (section 200(1) – Crimes Act
1961)
• Poisoning with intent to cause inconvenience or annoyance (section 200(2) – Crimes
Act 1961)
• Setting trap or device with intent to injure (section 202(1) – Crimes Act 1961)
• Using a firearm against an officer (section 198A(1) - Crimes Act 1961)
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• Using a firearm to resist arrest (section 198A(2) - Crimes Act 1961)
- With intent to resist
• Commission of a crime with firearm (section 198B - Crimes Act 1961)
• Wounding with intent to cause grievous bodily harm (section 188(1) - Crimes Act
1961)
• Wounding with intent to injure (section 188(2) - Crimes Act 1961)
Arrest
Defences and use of force
• The defence of consent
- Implied consent
- Consent to harm
Justification
• The defence of lawful use of force
• Excessive force
Assault related procedures
• Initial action
• The victim’s condition
• Statements
• Evidence
• Further enquiries
• Interviewing the suspect
• Charging
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Summary
Introduction
Assaults and injuries to the person vary in nature and seriousness according to the
intentions of the offender and the degree of harm suffered by the victim.
The law allows for two main types of assault charges:
• those filed under the Summary Offences Act 1981, which are the more minor ones,
and
• those filed under the Crimes Act 1961, which relate to more serious assaults. Even
the less serious offences under the Crimes Act are dealt with more harshly than those
punishable under the Summary Offences Act.
This chapter explains the various types of assault, from minor through to very serious,
and considers the defences of consent and self-defence. It also gives guidelines for
investigating assaults.
Health and safety duties
Maximising safety and minimising risk
Maximising safety and eliminating or minimising risk at work is the responsibility of all
Police employees and persons engaged by Police to provide a service including
contractors and their employees, trainees, interns and volunteers. It is delivered through
meeting the obligations under the Health and Safety at Work Act 2015 and Police safety
policies.
A key enabler is the application of the TENR-Operational threat assessment in the
workplace.
The expectation of the Commissioner and the Act is that persons in the workplace will
take reasonable care to ensure that their acts or omissions do not adversely affect the
health and safety of other persons, comply as far as they are reasonably able to with any
reasonable instruction that is given in order to comply with the Health and Safety at
Work Act 2015 or regulations under that Act. They will co-operate with any reasonable
policy or procedure relating to health or safety at the workplace that has been notified to
them and take immediate action to stop any perceived or potential breach of the act or if
impractical, immediately report the matter to a supervisor.
Health and safety should be an everyday conversation
Relevant Police instructions include:
• Hazard management
• Health and safety
• Wellness and safety
• this chapter in relation to the safe investigation of assaults.
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Definitions
Table of definitions
This table provides some definitions of terms relevant to this chapter.
Term Definition
Act or gesture
Usually, physical movement is necessary for a threat to constitute
an assault. In most cases, the movement is accompanied by
words, and the combination of the two proves the suspect’s intent.
However, physical contact is not necessary for a threat to
constitute an assault.
Any person
‘Any person’ is not confined to the intended victim. A suspect who
intends to harm one person but in fact, harms another, may still be
guilty of assault. Mistaken identity is not a defence -
R v Monger
[1973] Crim LR 301 and
R v Chandler (unreported, High Court
Napier, 10 February 1993, AP 4/93) refer.
Applying force
‘Applying force’ means hitting, with or without an object; or
kicking, punching, holding or touching. The force used may be
minimal.
Assault Under
section
2 of the Crimes Act 1961 and section 2 of the
Summary Offences Act 1981, ‘assault’ means:
• the act of intentionally applying or attempting 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 or
she has, present ability to effect his or her purpose; and
• ‘to assault’ has a corresponding meaning.
Note: An attempt is the full offence. There is no offence of
attempted assault.
Constable Under
section
4 of the Policing Act 2008, ‘constable’ means a Police
employee who:
• holds the office of constable (whether appointed as a constable
under the Police Act 1958 or the Policing Act 2008); and
• includes a constable who holds any level of position within the
New Zealand Police.
Conditional
A conditional threat, i.e. a threat conditional on some subsequent
threat
action, does constitute an offence of assault, provided the other
requirements of the definition are met. For example, Police called
to a domestic dispute were met at the door by Greaves, who was
brandishing a carving knife. He warned the constables that if they
came any closer, he would stab them (refer
Police v Greaves [1964] NZLR 295).
Directly or
Assault occurs if the suspect intends that force be applied to
indirectly
another and does something that causes this to occur.
Indirect assault is where force is not applied directly to the victim
and includes an intentional action which misses the intended target
but strikes an unintended person. Indirect means giving effect to
the defendant’s intention through some instrumentality remote
from his or her person -
Narayan v Police (HC Christchurch, CRI-
2009-409-000058, 10 June 2009) refers.
For example, a man who knocked down his wife and caused injury
to the baby she was holding, was convicted of assaulting the baby
-
R v McMasters [1920] GLR 351 refers.
Disfigures
Disfigurement consists of external injury that mars or alters a
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person’s appearance. The injury or damage need not be permanent
-
R v Rapana and Murray (1988) 3 CRNZ 256 refers.
Doctrine of
If the defendant has a
mens rea of a particular crime, carries out
transferred
the
actus reus of the same crime, he is guilty even though the
malice
result may be unintended, i.e. if the victim differs from the one
intended. For example the accused assaulted another man with his
belt but in addition to striking the intended victim, the belt struck a
woman standing nearby. Although there was no intention to hit the
woman, the doctrine of transferred malice applied and accused was
also convicted of assaulting the woman. Refer
R v Latimer (1986)
17 QBD 359 and
Narayan v Police (HC Christchurch, CRI-2009-
409-000058, 10 June 2009).
If the defendant has the
mens rea for a different offence from that
which he commits, the intent cannot be transferred. For example,
throwing a stone at a person, but the stone missed victim and
broke a window. His intention was to assault a person, and this
mens rea cannot be used to prove the offence of intentionally
damaging the window.
R v Pembliton (1874) LR 2 CCR 119.
Firearm Under
section
2 of the Arms Act 1983, ‘firearm’:
• means anything from which any shot, bullet, missile, or other
projectile can be discharged by force of explosive; and
• includes:
- anything that has been adapted so that it can be used to
discharge a shot, bullet, missile, or other projectile by force
of explosive; and
- anything which is not for the time being capable of
discharging any shot, bullet, missile, or other projectile but
which, by its completion or the replacement of any
component part or parts or the correction or repair of any
defect or defects, would be a firearm within the meaning of
paragraph (a) of this definition or subparagraph (i) of this
paragraph; and
- anything (being a firearm within the meaning of paragraph
(a) of this definition or subparagraph (i) of this paragraph)
which is for the time being dismantled or partially
dismantled; and
- any specially dangerous airgun.
Grievous bodily
‘Grievous bodily harm’ means harm that is really serious or really
harm
seriously hurts; for example, if an offender stabs a victim and the
knife penetrates a vital organ. On the other hand, if the knife
misses vital organs so that only tissue is cut, this would be more in
keeping with an injury -
R v Waters [1979] 1 NZLR 375 refers.
Proof of permanent injury is not required -
R v James (1980) 70 Cr
App R 21 refers.
Grievous bodily harm includes some diseases, provided their
effects are sufficiently serious, which included infecting victim
through sexual intercourse with HIV.
R v Mwai [1995] 3 NZLR 149;
(1995) 13 CRNZ 273 (CA).
Grievous bodily harm is not limited to bodily injury but can include
injury to the mind. However, ‘really serious psychiatric injury’ must
be identified as such by appropriate specialist evidence.
R v Chan-
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Fook [1994] 2 All ER 552.
Household
‘Household’ will bear its ordinary meaning of a domestic unit in
which one or more people live, whether a family, or flatmates, or
fellow lodgers. Whether the suspect is a member of the same
household as the victim is a matter of fact and, as a word in
common usage, the Court will generally need no specific direction
on its meaning.
Injures Under
section
2 of the Crimes Act 1961, ‘to injure’ means to cause
actual bodily harm.
Actual bodily harm:
• does not require proof of physical injury and may include
producing an hysterical or nervous condition (
R v Miller [1954] 2
All ER 529)
• includes any hurt or injury calculated to interfere with the health
or comfort of the victim. It need not be permanent but must be
more than merely transient and trifling (
R v Donovan [1934] 4
KB 498, 509). For example, it is unlikely that a bruised arm
would be considered to be actual bodily harm
• is not necessarily limited to physical injuries. It may relate to an
impaired state of mind; for example, where a victim can no
longer go about their normal life as a result of the fear and
shock caused by the assault. This must be a psychiatric injury,
identifiable as a clinical condition. Other states of mind or
emotions, such as fear or distress will not meet the test of
actual bodily harm.
Intent
In the sections relating to assault, ‘intent’ is clearly set out. For
example, in section 188, it must be established that the suspect
meant to cause grievous bodily harm, or
meant to injure some
person. It is not sufficient that the suspect merely thought it
possible that injury might result. For example, if a gun is fired
when there seems to be no one around, there is a remote
possibility that someone may be hurt. However, if a gun is fired
into a crowd, it is likely that the suspect is intending to hurt
someone. It is not necessary that the person injured is the
intended victim.
Intent may be proved by:
• circumstantial evidence. This may include the suspect’s actions
and/or words before, during or after the event; or
• the circumstances and nature of the offence. For example, if the
suspect had a baseball bat in a situation where it would not be
normal to have one, it would suggest that the bat had been
brought along as a weapon; or
• the suspect’s explanation or, if there is no explanation, what can
be inferred about what the suspect intended as the natural
consequences of their action.
Intent can be inferred from the surrounding circumstances -
R v
Collister (1955) 39 Cr App R 100.
Maims
‘To maim’ means to cause serious bodily injury; for example, the
loss of the use of an essential part such as an arm or an eye. Mere
disfigurement is not enough. There must be permanent weakness
or loss.
Manslaughter Under
section
171, except as provided in section 178 of the Crimes
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Act, culpable homicide not amounting to murder is manslaughter.
Obstructs
To intentionally ‘obstruct’, the act must be done “deliberately and
intentionally” -
Hammerley v Scandrett [1962] NZLR 455 and
Dash
v Police [1970] NZLR 273 refer.
Reckless
A person is ‘reckless’ if they have “a conscious appreciation of the
danger or risk of damage if they continue with the course of
conduct but proceeds] nevertheless” -
Campbell v Police (unreported, High Court Dunedin, 18 November 1983, M143/83).
“A person is reckless if:
• knowing that there is a risk that an event may result from their
conduct or that a circumstance may exist, they take that risk;
and
• it is unreasonable for them to take it having regard to the
degree and nature of the risk which they know to be present.”
R v Stephenson [1979] QB 695 (CA).
A person is reckless if they foresee that a course of action could
well have dangerous consequences, but intends to continue in that
course regardless of the risk -
R v Harney [1987] 2 NZLR 576 (CA).
In addition to a conscious appreciation of the risk on the part of the
accused (a subjective enquiry), the risk must also be one which it
is unreasonable to take - refer
R v Tipple 22/12/05, CA217/05.
Note that the specific requirement for an ‘intentional’ application of
force means that recklessness is not sufficient to prove assault
under section 2 Crimes Act 1961: (
R v Young 9/7/92, CA86/92).
Rendered any
Whether a threat is capable of being ‘violent means’ and ‘rendering
person incapable the person incapable of resistance’ is a question of fact and
of resistance
depends upon the assessment by the jury of all the circumstances
surrounding the making of the threat -
R v Crossan [1943] NZLR
454.
Stupefied
To ‘stupefy’ means to cause an effect on the mind or nervous
system of a person which really seriously interferes with that
person’s mental or physical ability to act in any way which might
hinder an intended crime. Whether such interference is really
serious is a matter of fact and degree for a Court to determine.
R v
Sturm [2005] 3 NZLR 252 refers.
Violent means
See offences such as aggravated wounding (s191(1)). ‘Violent
means’ should be given its ordinary meaning. It is a question of
fact for the jury -
R v Crossan [1943] 1 NZLR 375 refers.
It is not limited to physical violence, but includes threats of
violence such as the threat to shoot. Whether a threat is capable of
being ‘violent means’, depends upon the assessment by the jury of
all the surrounding circumstances.
Wounds
A person is ‘wounded’ if:
• the skin has been broken, or
• there is an internal injury caused by, for example, a kick.
The wound does not have to be dangerous, although more than a
minimal flow of blood is required. A bleeding nose or a graze may
not be sufficient to prove wounding. [
Note:
R v Waters says:
Whether the bleeding of a nose caused by violence can amount to
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a wound for the purposes of section 188(1) may be a question of
fact for determination in each case.]
External wounds might include a stab wound from a knife or scalp
lacerations from a broken beer bottle. An internal organ that has
been split as a result of kicks to the abdomen would be an internal
wound.
A wound is a break in the skin. It is usually evidenced by bleeding,
although the bleeding may be internal -
R v Waters [1979] 1 NZLR
375 refers.
Proof of permanent injury is not required -
R v James (1980) 70 Cr
App R 215 refers.
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Offences
Criminal Procedure Act 2011
A guide to categories of offences can be found in section 6 of the Criminal Procedure Act
2011.
Widely understood definitions for ‘offence’ and ‘crime’ were repealed by the Criminal
Procedure Act 2011. The following informal definition is intended to provide assistance
and has been drafted with assistance from legal experts.
‘Offence’ and ‘crime’ may be used interchangeably, and there is often no material
difference between them. They may be described as any act or omission that is
punishable under any enactment, and are demarcated into four categories as defined in
section 6 of the Criminal Procedure Act 2011.
Offence and legislation table
This table details offences relevant to this chapter.
Offence and legislation
Jurisdiction
Assault with intent to commit sexual violation
Category 3 offence.
Section 129(2) - Crimes Act 1961
Wounding with intent to cause grievous bodily harm
Category 3 offence.
Section 188(1) - Crimes Act 1961
Wounding with intent to injure
Category 3 offence.
Section 188(2) - Crimes Act 1961
Injuring with intent to cause grievous bodily harm
Category 3 offence.
Section 189(1) - Crimes Act 1961
Injuring with intent to injure
Category 3 offence.
Section 189(2) - Crimes Act 1961
Injuring by unlawful act
Category 3 offence.
Section 190 - Crimes Act 1961
Aggravated wounding
Category 3 offence.
Section 191(1) - Crimes Act 1961
Aggravated injury
Category 3 offence.
Section 191(2) – Crimes Act 1961
Aggravated assault
Category 3 offence.
Section 192(1) - Crimes Act 1961
Aggravated assault on police constable
Category 3 offence.
Section 192(2) - Crimes Act 1961
Assault with intent to injure
Category 3 offence.
Section 193 - Crimes Act 1961
Assault on child
Category 3 offence.
Section 194(a) - Crimes Act 1961
Assault by male on female
Category 3 offence.
Section 194(b) - Crimes Act 1961
Ill-treatment or neglect of child or vulnerable adult
Category 3 offence.
Section 195 - Crimes Act 1961
Failure to protect child or vulnerable adult
Category 3 offence.
Section 195A – Crimes Act 1961
Common assault
Category 2 offence.
Section 196 - Crimes Act 1961
Disabling
Category 3 offence.
Section 197 - Crimes Act 1961
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Discharging firearm or doing dangerous act with intent to cause Category 3 offence.
grievous bodily harm
Section 198(1) - Crimes Act 1961
Discharging firearm or doing dangerous act with intent to
Category 3 offence.
injure
Section 198(2) - Crimes Act 1961
Using firearm against law enforcement officer
Category 3 offence.
Section 198A(1) - Crimes Act 1961
Using firearm to resist arrest
Category 3 offence.
Section 198A(2) - Crimes Act 1961
Commission of crime with firearm
Category 3 offence.
Section 198B - Crimes Act 1961
Acid throwing
Category 3 offence.
Section 199 - Crimes Act 1961
Poisoning with intent to cause grievous bodily harm
Category 3 offence.
Section 200(1) – Crimes Act 1961
Poisoning with intent to cause inconvenience or annoyance
Category 3 offence.
Section 200(2) – Crimes Act 1961
Infecting with disease
Category 3 offence.
Section 201 – Crimes Act 1961
Setting trap or device with intent to injure
Category 3 offence.
Section 202(1) – Crimes Act 1961
Permitting set trap likely to injure to remain
Category 3 offence.
Section 202(2) – Crimes Act 1961
Assault with a weapon
Category 3 offence.
Section 202C - Crimes Act 1961
Impeding rescue
Category 3 offence.
Section 204(1) – Crimes Act 1961
Assault with intent to rob
Category 3 offence.
Section 236(1) - Crimes Act 1961
Common assault
Category 2 offence.
Section 9 - Summary Offences Act 1981
Assault on Police, prison or traffic officer
Category 2 offence.
Section 10 - Summary Offences Act 1981
Note: The brief discussion of each offence provision below is designed to give the reader
a general understanding of the elements of those offences that must be proved by the
prosecution. When making actual charging decisions consult the online resources
‘Westlaw’ or ‘LexisNexis’.
Acid throwing (section 199 - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to injure or disfigure anyone,
• threw at, or applied to any person,
• any corrosive or injurious substance.
Aggravated assault (section 192(1) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to:
- commit or facilitate the commission of any imprisonable offence, or
- avoid detection of self/another in commission of any imprisonable offence, or
- avoid arrest or facilitate flight of self/another upon commission or attempted
commission of any imprisonable offence
• assaulted any other person.
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You must prove the intent of the offender:
• in relation to the commission or attempted commission of an imprisonable offence,
and
• to assault.
Section 192(1)(c) requires proof of the commission or attempted commission of a crime
by the person committing the assault or by the person whose arrest or flight he intends
to avoid or facilitate.
R v Wati and others [(1984) 1 CRNZ 380] refers.
Aggravated wounding (section 191(1) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to:
- commit or facilitate the commission of any imprisonable offence, or
- avoid detection of self/another in commission of any imprisonable offence, or
- avoid arrest or facilitate flight of self/another upon commission or attempted
commission of any imprisonable offence
• wounds, maims, disfigures or causes grievous bodily harm to any person, or
• stupefies a person, or
• renders a person unconscious, or
• by any violent means renders any person incapable of resistance.
“Before an accused can be found guilty of an offence under section 191 or section 192, it
must be shown the offender either meant to cause the specified harm, or foresaw that
the actions undertaken by them were likely to expose others to the risk of suffering it”.
R
v Tihi [1989] 2 NZLR 29; (1989) 4 CRNZ 289 (CA) refers.
Note: Where a victim is seriously injured there is no need to prove that they were
rendered incapable as a consequence. However, where the threat or injury has not been
physically debilitating, you must prove the effect of the 'violent means' that it rendered
the victim incapable of resistance. For instance, the victim may be held at gunpoint or
tied up or so fearful of their safety that they are rendered incapable of resistance.
Note: The offences aggravated wounding or aggravated injury are essentially the same.
The difference is in the degree of violence used in committing the offence.
Aggravated injury (section 191(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to:
- commit or facilitate the commission of any imprisonable offence, or
- avoid detection of self/another in commission of any imprisonable offence, or
- avoid arrest or facilitate flight of self/another in commission
• injured any person.
Note: You must show the offender intended to injure as well as commit the offence.
“Before an accused can be found guilty of an offence under this section or section 192, it
must be shown the offender either meant to cause the specified harm, or foresaw that
the actions undertaken by him were likely to expose others to the risk of suffering it”.
R
v Tihi [1989] 2 NZLR 29; (1989) 4 CRNZ 289 (CA) refers.
For example, an attack on a prison officer with an iron bar in the course of an attempted
escape was the employment of ‘violent means’, the purpose of which was to render the
prison officer incapable of resistance.
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Assault by male on female (section 194(b) - Crimes Act 1961)
You must prove the identity of the suspect and that he assaulted a female.
The charge should not automatically be used in all situations where a male has assaulted
a female. The section should be used when the assault is more than trifling, and should
be regarded as one possible charge among many in the scale of available charges.
See also: ‘Family violence policy and procedures’ of the Police Manual.
Assault on a child (section 194(a) - Crimes Act 1961)
You must prove the identity of the suspect and that they assaulted a child under the age
of 14 years.
See also:
‘Child protection’ related chapters of the Police Manual.
Aggravated assault on Police / person executing a process (section
192(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• assaulted:
- any constable, or
- person acting in aid of any constable, or
- any person in the lawful execution of any process
• with
intent to obstruct the person so assaulted in the execution of their duty.
You must also prove that:
• at the time of the assault the suspect ‘assumed’ that the victim was a constable or
assistant or person seeking to serve a process (e.g. court bailiff)
• the assault was committed with the
intent to obstruct the person assaulted
in the
execution of their duty.
R v Simpson [1978] 2 NZLR 221 (CA) refers.
The suspect must reasonably believe that the victim is a police officer etc. This may be
inferred from the circumstances or conversation.
Ostler v Elliot [1980] Crim LR 584
refers.
Note: Section 192(2) differs from section 10 of the Summary Offences Act in these
three respects:
• 192(2) covers a wider range of people carrying out legal duties, such as people acting
in aid of a constable, and people lawfully executing processes, such as bailiffs.
• The offender must have an intent to obstruct the person assaulted rather than as in
Section 10 of the Summary Offences Act 1981 where it is necessary only that the
constable is acting “in the execution of his duty”. The offence under subs 192(2) may
be committed if the offender believes the person assaulted to be in the execution of
his or her duty and intends to obstruct that person therein, even if it should be found
that, for technical or other reasons, that person was not in fact executing their duty.
• The Crimes Act penalty of 3 years imprisonment is greater than section 10 of the
Summary Offences Act 1981 (e.g. 3 months/$4000).
What constitutes ‘execution of duty’ is not rigidly defined. There is no complete list of
duties a Police member may undertake. Moreover, although many Police duties and
powers are set out in statute, some are not, such as the general duty at common law to
protect life or property.
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Section 48 defence
In
R v Christiansen (2001) 19 CRNZ 256 (CA), the Court held that it was a defence to a
charge under section 192(2) if the accused, when interfering with an arrest by a
constable, held an honest belief that the constable was using excessive force in effecting
the arrest; the use of excessive force takes a constable outside the scope of their duty.
Assault on police, traffic or prison officer (section 10 - Summary
Offences Act 1981)
You must prove the identity of the suspect and that they:
• assaulted any:
- Police constable, or
- Traffic Officer, or
- Correctional Officer
• who was acting in the execution of their duty.
Note: For this offence, two kinds of intent are involved:
• the intent to
assault, and
• the intent to obstruct
in the execution of duty.
If there is doubt that the suspect knew or would reasonably have assumed that the
victim was an officer acting in the execution of duty, it may be preferable to file a charge
of common assault rather than lose the charge. For example, if a plain clothes officer is
assaulted while breaking up a fight, the suspect may not realise at first who they are
assaulting.
The degree of the assault is also a factor. This section is appropriate where the assault is
trifling, and is on Police. However, if serious injury results, or it is difficult to prove that
the defendant’s actions were intended to obstruct the victim in the execution of his duty,
it may be more appropriate to lay another assault charge, such as under section 9 of the
Summary Offences Act or section 196 of the Crimes Act.
Assault with a weapon (section 202C - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• in assaulting any person,
• used any thing as a weapon;
or
• while assaulting any person,
• had any thing with them
• in circumstances that prima facie showed an intention to use it as a weapon.
Note: The phrase used is any thing. ‘Any thing’ could include a baseball bat, which can
be deliberately used to swing at people, with the intent to assault.
Assault with intent to commit sexual violation (section 129(2) - Crimes
Act 1961)
See the Sexual offences chapter.
Assault with intent to injure (section 193 - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to cause actual bodily harm
• assaulted any person.
It is not necessary that the intended harm (injury) occurred, nor is it necessary that the
person assaulted is the person the defendant was actually intending to injure.
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Consent will be a defence to a charge under this section unless the assault takes place in
the course of a consensual fight or there are other “good policy reasons to forbid it”:
R v
Lee [2006] 3 NZLR 42; (2006) 22 CRNZ 568 (CA) refers.
Assault with intent to rob (section 236(1) - Crimes Act 1961)
See the ‘Robbery’ chapter.
Common assault (section 196 - Crimes Act 1961)
You must prove the identity of the suspect and that they assaulted any person.
Note: The ingredients of common assault are the same in both the Summary Offences
Act and the Crimes Act. The difference lies in the nature of the assault. For example,
common assaults best dealt with under the Summary Offences Act range from things like
a simple push or a threat to assault someone, through to something like a punch that
causes only minor injury or minor abrasions or bruising. The range of Crimes Act
common assaults, on the other hand, may start at a punch that causes a major swelling
or bruising, or that knocks a tooth out. A number of punches that cause more than a
trifling, but not serious, injury would also constitute a Crimes Act common assault.
The decision on which charge to prefer must be based on the degree of assault, the
severity of the injuries caused and the circumstances surrounding it.
Common assault (section 9 - Summary Offences Act 1981)
You must prove the identity of the suspect and that they assaulted any person.
Ill-treatment or neglect of child or vulnerable adult (section 195 -
Crimes Act 1961)
You must prove the identity of the suspect and that they:
• are a person who:
- has actual care or charge of the victim, or
- is a staff member of any hospital, institution, or residence where the victim resides
• intentionally:
- engaged in conduct that, or
- omits to discharge, or perform any legal duty, the omission of which,
• is likely to cause suffering, injury, adverse effects to health, or any mental disorder or
disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the
omission to perform the legal duty, is a major departure from the standard of care to
be expected of a reasonable person.
Note: A child for the purpose of the section is a person under the age of 18 years.
Where the victim is aged 18 or more it will also need to be shown that they were unable,
by reason of detention, age, sickness, mental impairment, or any other cause, to
withdraw from the care or charge of another person.
‘Actual care or charge’
‘Actual care or charge’ are not defined in legislation, but case law indicates:
• the meaning of the words is a question of law
• whether the accused had ‘actual care or charge’ is a question of fact.
Facts of each case will consider legal, temporary or permanent relationships and the
right to the actual care of a child or vulnerable person.
‘Staff member’
The liability extends to all ‘staff members’ working in any hospital, institution or
residence in which the child or vulnerable adult ‘resides’, irrespective of whether they
can be seen as in charge of or involved in the care of the victim.
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Likelihood of harm
Actual suffering, injury, adverse effects to health or mental disorder or disability need
not be proved, only its likelihood. This requires a real or substantial risk of one or more
of the proscribed harms, rather than any assessment or balancing of the probabilities:
R
v Hende [1996] 1 NZLR 153 (CA).
Intentionally engaging in conduct
Intentionally engaging in conduct means ill-treatment must have been inflicted
deliberately with a conscious appreciation that it was likely to cause unnecessary
suffering. Put another way, the conduct or failure to act must be more than merely
accidental.
Breach of legal duty
Section 195 does not in itself impose positive obligations on either those having actual
care or charge of a child or vulnerable person or the staff of relevant institutions. The
primary legal duties relevant to charges under this section are those in ss 151–152,
requiring children and vulnerable adults to be provided with ‘necessaries’ and to be
protected from injury. However the use of the term ‘legal’ duties means that, liability is
not limited to breaches of statutory duty and will extend to relevant common law duties
when they differ from those enshrined in statute:
R v Mwai [1995] 3 NZLR 149, (1995)
13 CRNZ 273 (CA), at 156, 281;
R v Lunt [2004] 1 NZLR 498.
Act or omission constituting a ‘major departure’
The fact that a suspect was simply ignorant, unthinking, careless or lax in acting, or
failing to act when he or she should have will not be sufficient. The behaviour creating
the risk of harm must go further and be a ‘major departure’ from what is acceptable in
those having care or charge of others or who are employed in relevant institutions.
Failure to protect child or vulnerable adult (Section 195A – Crimes Act
1961)
This charge is best reserved for situations involving a pattern of physical ill-treatment
and neglect over a period of time.
You must prove the identity of the suspect and that they:
• are:
- a member of the same household as the victim; or
- a person who is a staff member of any hospital, institution, or residence where the
victim resides
• had frequent contact with the child or vulnerable adult (the victim)
• knew the victim was at risk of death, grievous bodily harm, or sexual assault as the
result of:
- an unlawful act by another person; or
- an omission by another person to discharge or perform a legal duty if, in the
circumstances, that omission is a major departure from the standard of care
expected of a reasonable person to whom that legal duty applies
• fails to take reasonable steps to protect the victim from that risk.
Note: A person may not be charged with this offence if they were under the age of 18 at
the time of the act or omission.
Members ‘of the same household as the victim’
A person is to be regarded as a member of a particular household, even if they do not
live in that household, if that person is so closely connected with the household that it is
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reasonable, in the circumstances, to regard them as a member of the household.
(s195A(4)(a)).
Where the victim lives in different households at different times, the same household
refers to the household in which the victim was living at the time of the act or omission
giving rise to the risk of death, grievous bodily harm, or sexual assault (s195A(4)(b)).
In determining whether a person is so closely connected with a particular household as
to be regarded as a member of that household, consider the frequency and duration of
visits to the household, whether the person has a familial relationship with the victim
and any other matters that may be relevant in the circumstances (s195A(5)).
See, the ‘Definitions’ section for the meaning of ‘household’.
Having ‘frequent contact’
The requirement of frequent contact is a ‘free standing’ one, without which the
prosecution cannot succeed. Whether the contact between the suspect and the victim
can be regarded as sufficiently ‘frequent’ is a matter of fact for the jury, and the phrase
will generally need no further explanation:
R v Khan [2009] EWCA Crim 2, [2009] 1 WLR
2036.
Knowledge of the risk of harm
Section 195A requires that the defendant “know” that there is a likelihood that some
unlawful act or serious breach of duty by another person will expose the victim to the
risk of death or serious harm. ‘Knowledge, both as to the likely occurrence of the
relevant act or omission and as to the resulting risk to the victim, requires either
certainty or at least an assumption or belief with ‘no substantial doubt:
R v Simpson [1978] 2 NZLR 221 (CA) at 225;
R v Crooks [1981] 2 NZLR 53 (CA);
Kerr v R [2012]
NZCA 121. Merely being suspicious or reckless as to the existence of the risk will not
constitute “knowledge”.
However, where the defendant is aware that the victim is very likely to be at risk but
deliberately fails to follow the matter up, either for fear of confirming their suspicions or
because they do not want to get involved and wish to be able to deny knowledge if the
worst happens, such ‘wilful blindness’ may itself supply the necessary
mens rea.
Failure to take reasonable steps to protect the victim
The requirement is simply to take “reasonable steps”. Provided that the jury is satisfied
that the defendant failed to respond to the situation in the way that a reasonable person
should have, the section will be satisfied. There is no need for the failure to act properly
to be ‘gross’ or a ‘major’ departure from the expected standards.
Disabling (section 197 - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• wilfully and without lawful justification or excuse,
• stupefied or rendered unconscious any other person.
Discharging firearm or doing dangerous act with intent - intent to cause
grievous bodily harm (section 198(1) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to do grievous bodily harm:
- discharged any firearm, airgun, or other similar weapon at any person, or
- sent or delivered to any person, or put in any place, any explosive or injurious
substance or device, or
- set fire to any property.
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Section 198(1)(a) requires intention to shoot at the person and the discharge of the
weapon. Recklessness, rather than intention to shoot a person is not enough.
Discharging firearm or doing dangerous act with intent - intent to injure
(section 198(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to injure, or
• with reckless disregard for the safety of others:
- discharged any firearm, airgun, or other similar weapon at any person, or
- sent or delivered to any person, or put in any place, any explosive or injurious
substance or device, or
- set fire to any property.
Section 198(2) does not require that an explosion be caused. However, it is arguable
that prosecution must go further and prove that the explosive in question did, in the
circumstances, have the capacity to explode.
Injuring by unlawful act (section 190 - Crimes Act 1961)
You must prove the identity of the suspect and that:
• their act or omission
• resulted in injury to any person
• in circumstances that if death occurred it would have been manslaughter.
An unlawful act must inevitably be recognised by all sober and reasonable persons as
such. As well, as a result of the unlawful act other persons must be subject to some risk
of harm albeit not serious.
R v Church [1966] 1 QB 59; [1965] 2 WLR 1220; [1965] 2 All
ER 72 (CA) refers.
Injuring with intent to cause grievous bodily harm (section 189(1) -
Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to cause grievous bodily harm to anyone
• injured any person.
Injuring with intent to injure (section 189(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to injure anyone, or
• with reckless disregard for the safety of others:
- injured any person.
The difference between sections 188 and 189 is that the final result of the assault in the
section 189 offence is only injury. Consequently, the penalties are less severe under
section 189 than section 188.
Using a firearm against a law enforcement officer (section 198A(1) -
Crimes Act 1961)
You must prove the identity of the suspect and that they:
• used any firearm
• in any manner
• against a constable, traffic officer or Prison officer acting in the execution of their duty
• knowing, or being reckless as to whether, that person is a constable, traffic officer or
prison officer.
Note: Using in any manner means the firearm is physically used, and includes when
used as a club. Presenting the firearm at the officer, let alone discharging the weapon, is
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not needed. The accused must handle or manipulate the firearm in some way to convey
the implied threat of its use.
Using any firearm in any manner whatsoever includes removing a sawn-off shotgun from
a bag when confronted by a police officer
R v Swain (1992) 8 CRNZ 657] refers.
Using a firearm to resist arrest (section 198A(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• used any firearm
• in any manner
• with intent to resist lawful arrest or detention of themselves or any other person.
With intent to resist
The prosecution must prove that the accused knew someone was attempting to arrest or
detain them.
Fisher v R (1988) 3 CRNZ 250 refers.
See the ‘Arms’ chapter of the Police Manual.
Commission of a crime with firearm (section 198B - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• in committing any imprisonable offence, used any firearm, or while committing any
imprisonable offence has any firearm with them
• in circumstances that
prima facie show an intent to use it in connection with the
imprisonable offence.
The courts have indicated that “having with him a firearm” requires “a very close
physical link and a degree of immediate control over the weapon by the man alleged to
have the firearm with him”:
R v Kelt [1977] 1 WLR 1365; [1977] 3 All ER 1099 refers.
Mere possession is insufficient; there must be accompanying circumstances showing
prima facie intention to use the firearm.
Prima facie has its ordinary meaning, that is, on
the face of it, as at first appearance or first sight. “
Prima facie circumstances" are those
which are sufficient to show or establish an intent in the absence of evidence to the
contrary”:
Tuli v Police (1987) 2 CRNZ 638 refers.
Poisoning with intent to cause grievous bodily harm (section 200(1) –
Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to cause grievous bodily harm to anyone:
- administered to, or
- caused to be taken by
• any person:
- poison, or
- noxious substance.
Administration means to give or apply and this need not be by mouth. Administration
can occur by other means, such as by inhalation.
A substance is noxious if, in light of factors relating to its administration it is capable of
effecting consequence set out in the section, i.e. grievous bodily harm. Alcohol may be a
poison or noxious substance for the purpose of this section.
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Poisoning with intent to cause inconvenience or annoyance (section
200(2) – Crimes Act 1961
You must prove the identity of the suspect and that they:
• with intent to cause:
- inconvenience, or
- annoyance
• to any one, or for any unlawful purpose:
- administers to, or
- causes to be taken by
• any person:
- poison, or
- noxious substance.
Intent is not to cause grievous bodily harm, but instead to cause annoyance. An
example could include injecting diuretic (acting to increase the flow of urine) medication
into a watermelon to be consumed at a party as a ‘joke’. People eating the melon
experience diuresis (frequent and excessive urination) that could disturb their electrolyte
balance and be harmful.
Infecting with disease (section 201 – Crimes Act 1961)
You must prove the identity of the suspect and that they:
• wilfully and without lawful justification or excuse
• caused or produced
• in any other person
• any disease or sickness.
Wilfully
It is not enough that the causative act was deliberate. “Wilfully” means that the
defendant intended to cause or produce the disease, and recklessness is not sufficient:
R
v Mwai [1995] 3 NZLR 149 (1995) 13 CRNZ 273 (CA), at 152.
Setting trap or device with intent to injure (section 202(1) – Crimes Act
1961)
You must prove the identity of the suspect and that they:
• with intent to injure, or with reckless disregard for the safety of others:
- set, or
- placed, or
- caused to be set or placed
• any trap or device
• that is likely to injure any person.
Note: There is nothing in section 202(1) to limit the “trap or device” to mantraps, it is
sufficient that the trap or device should be “likely to injure any person”. For example,
setting a possum trap in a cannabis growing area to protect discovery and interference
of the plot.
Permitting set trap likely to injure to remain (section 202(2) – Crimes
Act 1961)
You must prove the identity of the suspect and that they:
• in occupation or possession of any place where
• any trap or device has been:
- set, or
- placed; and
• knowingly and wilfully
• permitted the trap or device to remain there
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• in such a condition that any person is likely to be injured.
Impeding rescue (section 204(1) – Crimes Act 1961)
You must prove the identity of the suspect and that they:
• without lawful justification or excuse
- prevented, or
- impeded, or
- attempted to prevent or impede
• any person attempting to save:
- their own life, or
- the life of any other person.
Note: No one is guilty of impeding rescue in the course of saving their own life or the life
of another person (s 204(2)). The section imposes no duty to assist any effort to save
life.
Wounding with intent to cause grievous bodily harm (section 188(1) -
Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to cause grievous bodily harm to anyone:
- wounded, or
- maimed, or
- disfigured, or
- caused grievous bodily harm to
• any person.
The use of the word “causes” means the offender’s actions were responsible for the
harm.
It is not material that there is no great harm caused to the victim. It is sufficient that
there was an intent to do grievous bodily harm and that harm resulted.
R v Hunt (1825)
1 Mood CC 93; 168 ER 1198 refers.
Wounding with intent to injure (section 188(2) - Crimes Act 1961)
You must prove the identity of the suspect and that they:
• with intent to injure anyone, or
• with reckless disregard for the safety of others:
- wounded, or
- maimed, or
- disfigured, or
- caused grievous bodily harm to
• any person.
Section 188(2) outlines two types of culpability, drawing a distinction between someone
who:
• acts intending to cause harm (
intent), and
• may not necessarily intend harm but is aware of such risk and acts anyway (
reckless
disregard).
Examples of ‘reckless disregard’ could include:
• Allowing a child to ride on a tractor that is not designed to carry passengers.
• A person extinguishing the lights in the stairway to the street and throwing an iron
bar across the exit door at the end of a theatre performance. In the almost total
darkness panic ensues and two members of the audience are seriously injured.
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Note: The difference between subsections 188(1) and 188(2) relates to the suspect’s
intent when doing the act that caused the injury. This difference is reflected in the
penalties.
Consider self defence under section 48 (self-defence and defence of another) of the
Crimes Act 1961. For example, the appellant, charged under section 188(2), (wounding
with intent) claimed they acted in self-defence in striking the complainant in the face
with a spanner because they were worried about their own personal safety. “In this case
it is difficult to see how the reasonable possibility of self-defence could have been made
out. There had been no actual threat given to the appellant. There was no imminence of
danger. The response of the appellant was totally out of proportion to the predicament
he was facing.”
Morrison v R (1989) 5 CRNZ 180 refers.
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Arrest
Power of arrest
For any of the above offences, you can arrest without warrant if you have good cause to
suspect that the offence has been committed and arrest is authorised under section 315
of the Crimes Act 1961 or section 39(1) of the Summary Offences Act 1981.
Section 315 of the Crimes Act authorises arrest, without warrant, of any person
suspected of committing a breach of the peace, suspected of committing an offence
punishable by imprisonment, or found to be disturbing the public peace or committing an
act punishable by imprisonment.
Section 39(1) of the Summary Offences Act authorises a constable to arrest, without
warrant, any person suspected (on good cause) of committing an offence against
specified sections of that Act, including sections 9 and 10.
Section 39(2) of the Act permits a constable to arrest and take into custody without a
warrant a person the constable sees committing an offence against various sections of
the Act (in practice, the sections relating to public disorder, such as excreting in a public
place, throwing stones, lighting fires, and drinking in public places (see ss32 – 38 of the
Act)).
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Defences and use of force
The defence of consent
As a general rule a person can consent to the application of force that causes harm short
of serious bodily harm or death. The common law defence to assault (consent) is
preserved by s 20(1) of the Crimes Act. A genuine belief in consent is a defence. If there
is evidence from which consent can reasonably be inferred, the prosecution must prove
consent was not given.
This is a complex area of law and legal advice will be required if consent is raised as a
defence to a charge of assault.
Implied consent
People commit technical assaults every day when they touch, shake hands, kiss, or hug.
The person doing the touching assumes the other person will consent. The acquiescence
of the person being touched – say by holding out his own hand to be shaken or turning
her cheek to be kissed is implied consent.
Another example of implied consent occurs in contact sport. A blow struck in sport that is
not likely, or intended, to cause bodily harm is not assault because the person struck has
impliedly consented to accept the reasonable risks associated with the sport.
There is a difference between technical assaults that occur in a game and assaults that
take place against the backdrop of the game. In
R v Tevaga [1991] 1 NZLR 296, the
accused delivered a blow that was likely to, and did, cause serious injury. The matter
was prosecuted, with the Court finding that these sorts of assaults cannot be tolerated
by the community or the courts.
Consent to harm
R v Lee (2006) 22 CRNZ 568 involved a death occurring during an ‘exorcism’. The
‘exorcists’ were charged with manslaughter. While no one may consent to their own
death Lee’s case is less clear because it involved consent to the assault that occurred as
part of the ‘exorcism’. Death was an unintended outcome of an assault that was
otherwise lawful.
The general rule is that consent is a complete answer where there was neither
intentional harm nor recklessness on the part of the person applying force and what
occurred came within the scope of consent. Whether or not consent as a defence should
be excluded in a particular case is determined by the Judge as a preliminary matter, with
full reasons to be given.
Otherwise consent is a question that must be left for the jury to determine. It is very
important that the jury assess exactly what was consented to. Consent is only a defence
if the acts in issue come within the scope of the activity consented to.
R v Lee.
It is uncertain to what extent a person may consent to danger of death or bodily harm. If
say a person tries to shoot a cigarette held in someone’s mouth and injures that person,
the shooter could be charged with injuring by unlawful act and it will be no defence to
that charge that the person consented to the attempt being made. If the person holding
the cigarette dies in the attempt, the shooter could be charged with manslaughter (
R v
McLeod (1915) 34 NZLR 568 (CA) refers).
In R v S [2016] NZHC 1185, the High Court held that the common law of New Zealand
does not permit consent to be used as a defence to the intentional infliction of serious
harm to a domestic partner where the purpose of the infliction of serious harm is to
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punish the consenting partner and where the consenting partner is particularly
vulnerable by age, financial reliance, psychological problems and gender.
The principle is that consent will provide a defence to harm short of serious harm or
death, whether inflicted intentionally or recklessly “unless there are good policy reasons
to forbid it”.
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Justification
The defence of lawful use of force
The use of force is authorised in law when it is reasonable in the circumstances and is
used for these specified purposes.
Specified purpose
Provision
The execution of legal process, lawful
Sections 39, 40, 41, 42, 43, 44, 45, 46
arrest, preventing escape or suicide and
and 47
suppressing riots.
Crimes Act 1961
Self defence and the defence of others
Section 48
Crimes Act 1961
The defence of property. Sections
52, 53, 55 and 56
Crimes Act 1961
Parental control Section
59
Crimes Act 1961
Discipline on ships and aircraft.
Section 60
Crimes Act 1961
Surgical operations.
Section 61 and 61A
Crimes Act 1961
Identifying particulars of person in custody. Section
32
Policing Act 2008
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Assault related procedures
Initial action
Because many serious assaults take place in public places, where evidence is quickly lost
or destroyed, your initial action is crucial. Remember to:
• Guard.
• Control.
• Freeze.
• Preserve.
For detailed procedures, see the ‘Part 1 Initial response to homicide or serious crime’ in
the ‘Homicide and serious crime investigations’ chapter of the Police Manual.
The victim’s condition
If the assault is serious, forensic evidence should be collected by following these steps.
Step Action
1
Arrange for a full medical examination by a registered medical practitioner,
using a Medical Examination Kit (MEK).
2
Obtain a full, written, doctor’s report on the victim’s injuries and condition.
3
Assign a constable to stay with the victim to provide SITREPS on the victim’s
condition and obtain a subsequent interview. If the victim’s condition is life
threatening, consider obtaining a ‘dying statement’.
4
Obtain photographs of the victim’s injuries. Ideally, these should be taken by
a Police photographer, but if the photographer is unavailable then you may
use your mobility device to take digital images.
See the ‘Digital imaging guidelines (Taking, downloading and securing
images)’ section in the Photography (Forensic imaging) chapter. The section
outlines the digital imaging process to:
• ensure any images they take will be accepted by courts as reliable evidence
• minimise the risk of legal challenges around whether the image could have
been compromised.
Statements
In all circumstances, obtain a written statement from the victim. See the relevant parts
of the ‘Interviewing’ chapter for guidance on investigative interviewing.
Evidence
See:
• the ‘Crime scene examination’ chapter for guidance on gathering evidence
• the ‘Forensic evidence’ chapters for further information on collecting evidence.
Further enquiries
Follow these steps.
Step Action
1
Interview all witnesses and obtain full, written statements. Those who are too
intoxicated to be interviewed immediately after the assault must be followed
up as soon as they are sober.
2
Also interview and obtain statements from medical staff such as ambulance
officers.
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3 Consider:
• if the offender is unknown, interviewing (where appropriate):
- neighbours
- transport operators
- vendors
- shift workers
- hospital staff
• using the media to publicise the offence and obtain information from the
public
• preparing a computer sketch of the suspect
• the possibility that the incident may have been monitored by security
cameras.
4
As you receive information, eliminate suspects.
Interviewing the suspect
Follow these steps.
Step Action
1
Interview the suspect and obtain a statement.
2
Note and photograph any injuries (remember that bruising may take some
time to show).
3
Consider arranging for a full medical examination by a doctor in order to
establish any injuries and identifying features, and to obtain forensic samples.
4
If possible, obtain a voluntary DNA sample.
Charging
Follow these steps.
Step Action
1
Decide whether to charge. Remember that assault-related charges under the
Summary Offences Act 1981 have a 12 month time limit for filing, per section
25(3)(b) of the Criminal Procedure Act 2011.
2
If the assault was on a Police or Prison officer, and there is doubt whether the
officer was acting in the strict execution of duty, consider filing a charge of
common assault rather than charging under section 10 of the Summary
Offences Act 1981.
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3
If a person has already been convicted or acquitted on a charge, you cannot
charge him/her with an offence arising from the same incident that is
substantially the same as the charge already filed. Police sometimes wish to
file a further charge that has an element that may increase the punishment to
which the person may be subject. For example a conviction or acquittal for
common assault is a bar to a prosecution for aggravated assault arising from
the same acts. See sections 46 and 47 of the Criminal Procedure Act 2011.
The principle does not apply insofar as a prior conviction is concerned if the
offence later charged had not been committed when the first charge was filed
or if the more serious offence could not reasonably have been charged at the
earlier time. For example, a person convicted of assault may be charged with
murder if the assault victim dies within a year and a day from injuries
sustained in the assault.
Where a serious assault is being investigated and the person might die of
his/her injuries, it may be appropriate to charge with an offence relating to
the assault if the test for prosecution is met for that offence. Should the
victim’s condition deteriorate, so that the assault charge no longer represents
the seriousness of the offending, it might be appropriate to request that the
court not enter the conviction (assuming the accused pleads or is found
guilty) until the situation becomes clearer.
If evidence that supports the more serious charge (such as manslaughter)
was not available when the accused was charged with assault (because the
victim is still alive), the accused’s plea to that charge of assault will not
prevent the more serious charge being filed. However, if the victim had died
when the assault charge was filed, so that the more serious charge of
manslaughter was available at the time of charging, then it is open for the
accused to plead previous conviction.
In practice, it is preferable to file a very serious assault charge, or one of
attempted murder, without prejudice to filing a homicide charge if the victim
should later die.
If the victim has died, but the available evidence did not support a charge of
homicide being filed against the assailant it is necessary to document those
evidential gaps. Those same evidential gaps may justify the filing of a less
serious charge, such as assault. Clearly documenting reasons for and against
filing charges from the outset will help guide decision making throughout the
investigation period.
A person may not be tried for an offence for which he/she has been already
acquitted or convicted; sections 46 and 47 of the Criminal Procedure Act 2011
refer here as well (see also section 26(2) of the New Zealand Bill of Rights Act
1990. This is the rule of double jeopardy. There are these two exceptions to
the general principle of double jeopardy:
• A tainted acquittal; a person acquitted of an imprisonable offence may later
be found guilty of perjury or intimidating a witness to the original
proceedings. In such a case the person may be convicted of an
administration of justice offence, as well as re-tried on the original offence.
• Compelling new evidence, not available at time of the original trial, and
that indicates with a high degree of probability that the person is guilty,
has come to light.
Refer sections 151 – 156 of the Criminal Procedure Act.
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4
In cases of serious assault where the victim may die, you can:
• charge the suspect with an assault appropriate to the circumstances
• seek a remand without plea
• in cases where a plea is entered, inform the court of the circumstances and
seek a remand without conviction
• prefer a more appropriate charge, and withdraw the original charge at a
later date if the victim’s condition or the circumstances dictate.
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