N v Police HC Christchurch Cri-2009-409-58

[2009] NZHC 692

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000058

N 

v

POLICE

Hearing:         19 May 2009

Appearances: A Bailey for Appellant

S Jamieson for Crown

Judgment:      10 June 2009

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against conviction.

[2]      It raises an interesting issue  about  the  mental  element  required  to  prove assault in circumstances where the alleged victim has not themselves been struck but has fallen to the ground because the person holding them has been hit.

Factual background

[3]      The prosecution arose out of an incident where the appellant punched his partner while she was standing, holding a child. As a result of the punch, she fell to

N  V POLICE HC CHCH CRI-2009-409-000058  10 June 2009

the ground still holding the child. The appellant was charged with male assaults female under s194(b) of the Crimes Act 1961 and with common assault against the child  under  s9  of  the  Summary Offences  Act  1981.  He  was  convicted  of  both offences but it is only the latter which is the subject of the appeal.

[4]      At the hearing in the District Court, the police called evidence from three witnesses: the partner (Ms Wardlaw), a neighbour who witnessed the altercation and a police officer who interviewed the appellant.

[5]      Ms Wardlaw testified that an argument had developed between her and the appellant, while they were standing in a driveway outside their house. She was holding the couple’s 19 month old son. The argument became heated and the appellant punched her in the chin. As a result of the punch, she fell to the ground still holding the child.  They both fell together. The child cried but neither was injured.

[6]       Ms Wardlaw’s testimony was corroborated by the neighbour except he said the appellant had punched her in the chest, rather than the chin. According to the evidence of the police officer, the appellant denied punching Ms Wardlaw. The officer did not specifically question him about any alleged assault on the child.

[7]      At the conclusion of the police case, counsel for the appellant Mr Bailey submitted there was no case to answer in respect of the assault on the child.

[8]      The Judge however ruled there was a case to answer and did so on the following basis:

assault is not a crime of specific intent and I was able to give Mr Bailey a High Court or Supreme Court case from the 1920s which sets out very similar facts to this  that there does not  need  to  be  an  intention  by  the defendant to assault the child, there has to be an intentional application of force to a person and I am quite satisfied in this case there was and as a result of that, both Ms Wardlaw and the child fell to the ground and it is my view that it is an assault on the child.

[9]      The  case  the  Judge  handed  to  counsel  was  the  1920  decision  of  R  v

McMasters [1920] GLR 351.  The report of that case says:

The prisoner was charged on several counts with assaulting his wife and child.   He knocked his wife down with a blow of his hand when she was carrying a baby.  The wife was seriously injured.  The child was cut about the mouth and bled copiously.  The accused, who was under the influence of liquor, had not intended to hit the child, and may not have done so, but it probably struck the ground, or something on the ground, in falling.

CHAPMAN, J. (orally). – As to the assault relating to the child, the prisoner, so to speak, knocked from under it its only support and brought it to the ground.  If it was by this means that its mouth was brought into contact with something that caused it to bleed, that is an assault on the child.  It would be the same if a person was sitting on something, say a pile of boxes, which an accused person knocked away and brought him to the ground.   The force need not be directly applied to the person.

The competing arguments

[10]     It was common ground the Judge was wrong to say assault was “not a crime of specific intent”, if, as seems highly unlikely, he meant intent was not a necessary ingredient of the offence. Assault is undoubtedly an offence requiring proof of intent.

[11]     However, where counsel disagree is as to the nature of the intent required.

[12]     Counsel for the appellant submits that what would have been required to found a conviction was an intention to apply force to the child. Mr Bailey acknowledged the force intended need not be direct. It may be indirect but it must still be intended. In support of this submission, Mr Bailey relied on the statutory definition of assault and the decision of Lazarus v Police (1997) 15 CRNZ 127 (HC). Mr Bailey argued there was no finding of intent to apply force to the child and no evidence supporting the existence of such an intention.

[13]     As regards McMasters, Mr Bailey submits the decision was either wrongly decided or is only authority for the proposition that indirect force may suffice, the Court never specifically addressing the issue of intent.

[14]     For its part, the police say the intention need not be directed to a specific person and that was all the District Court Judge meant by his reference to not requiring proof of a specific intent. Counsel, Ms Jamieson, argued there was no requirement  to  prove  the  appellant  intended  to  assault  the  child.    The  fact  the appellant intended to apply force to Ms Wardlaw who was holding the child and

through that force was applied to the child is sufficient to complete the offence of assault.

[15]     Ms Jamieson submitted that McMasters is cited without criticism in both Adams on Criminal Law at CA2.03.05 and Garrow and Turkington’s Criminal Law in New Zealand at CR12.1.  However, she also responsibly drew my attention to the fact that in another text book, Simester and Brookbanks Principles of Criminal Law at p 569 , the authors state the basis of the decision is unclear.

Discussion

[16]     It was common ground that apart from McMasters, there is no other New Zealand case on assault which has involved a victim falling to the ground because the person holding them has been assaulted.

[17]     Given the brevity of the McMasters decision, it is therefore necessary to return to first principles.

[18]     The definition of assault under s2 of the Summary Offences Act is the same as  that  under  the  Crimes  Act.    It  is  also  to  all  intents  and  purposes  the  same definition that applied at the time McMasters was decided.

[19]     The statutory definition reads:

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 person to believe on reasonable grounds that he has, present ability to effect his purpose;…..

[20]     The following principles can be distilled from the statutory definition and the case law:

(a) there must be an application of force to the person of another

(b) the application of force must be intentional

(c) an accidental or negligent application of force is not sufficient

(d) nor  is  a  reckless  application  of  force  sufficient  (R  v  Young

CA86/92, 9 July 1992). Assault may not be committed recklessly

(e) an intentional action which misses the intended person but strikes an unintended person is still an assault (Chandler v R HC Napier AP4/93, 10 February 1993, Grieg J).  The outcome in cases of that nature is said to depend on the doctrine of transferred  malice (“malice” meaning for this purpose “intention.”)

(f)   the actus reus of the offence (the application of force) can be either direct or indirect.  “Direct” application of force is usually regarded as meaning the application of force by the use of the defendant’s  body.  “Indirect”  on  the  other  hand  means  giving effect to the defendant’s intention through some instrumentality remote from his or her person (Kovalev v Police, HC Auckland A40/00, 22 May 2000, Randerson J).

[21]     In my view, applying these well established principles to the facts of this case, guilt could rest on two alternative bases.

[22]    Either, Ms Wardlaw could have been viewed as the innocent means or instrumentality through whom the assault on the child was committed.  The appellant would be guilty of two assaults, one by directly applying force to Ms Wardlaw and the other by indirectly applying force to the child.  Under that analysis, there would have to be an intention to apply force unlawfully to both.  It would therefore have been necessary for the Judge to have drawn an inference of intention to apply force to both, reminding himself that recklessness would not suffice.  That does not appear to have been the approach taken by the Judge although in my view, there was sufficient evidence on which the Judge could have inferred the necessary intention. Given the factual circumstances, the mens rea could have been seen as extending to the child.

[23]     The  alternative  analysis  is  to  invoke  the  doctrine  of  transferred  malice. Although the doctrine has been criticised as lacking any sound intellectual basis (Attorney General’s Reference (No 3 of 1994) [1998] 1 CrAppR 91) it has a long pedigree and its application is well established. Undoubtedly, it is part of New Zealand law (Chandler v R).

[24]      The basis of the doctrine is that if a defendant with the mens rea of a particular crime causes the actus reus of the same crime, he is guilty even although the result is in some respects an unintended one.  In this case, the appellant applied force to the child. He may not have intended to do that but he did intend to apply force to Ms Wardlaw.

[25]     The doctrine is not limited to situations where the assailant completely misses his intended victim. That is to say, it is not fatal to the application of the doctrine that the appellant’s punch actually connected with Ms Wardlaw. For confirmation of that point, one need only look to the facts of the leading case on transferred malice, R v Latimer (1886) 17 QBD 359.

[26]      The facts of Latimer were that the accused had been quarrelling in a pub with a man called Chapple. The accused took off his belt and aimed a blow at Chapple. Significantly, for present purposes, the belt struck Chapple lightly. The belt then bounded off and struck a woman close by who had been talking to Chapple. The jury found the blow was unlawfully aimed at Chapple but that the striking of the woman was entirely accidental and not such  a consequence of the blow as the accused ought to have expected.  On appeal, it was held the accused was properly convicted of unlawfully and maliciously wounding the woman, the Court relying on the doctrine of transferred malice.

[27]     In the same way, in my view, it was not necessary for the police in the circumstances of this case to prove the appellant intended to hit the child.

Outcome of appeal

[28]     The District Court Judge was right to convict the appellant of assaulting the child.

[29]     The conviction can be justified on either of the two alternative bases.

[30]     It was a decision that in my view accords with the law, with common sense and with community expectations.

[31]     The appeal is dismissed.

Solicitors:
A Bailey, Christchurch

Crown Solicitor, Christchurch