R v Burr
[2022] NZHC 1351
•9 June 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-073-000333
[2022] NZHC 1351
THE QUEEN v
WILLIAM BURR AND SHAUN BURR
Date of Hearing: 10 May 2022 Appearances:
R L Mann and K Whyte for the Crown
P J Morgan QC and J Donald for William Burr S Lance for Shaun Burr
Date of Ruling:
10 May 2022
Date of Reasons:
9 June 2022
REASONS FOR RULING (No. 2) OF POWELL J
[Definition of maim for purposes of question trail]
This judgment was delivered by me on 9 June 2022 at 4 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel/Solicitors:
Hamilton Legal, Hamilton
P J Morgan QC, Thackeray Chambers, Hamilton
S Lance, City Chambers, Shortland Street, Auckland
R v BURR [2022] NZHC 1351 [9 June 2022]
[1] On 10 May 2022, shortly before the delivery of my summing up in the trial of William Burr and Shaun Burr I issued my Ruling (No. 2) which adopted the following definition of “maim” for the purposes of the question trail in respect of charges 3 and 4 against the defendants:
Maim 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.
[2] In my ruling I stated my reasons would follow upon the completion of the trial. Those reasons for the ruling now follow.
Background
[3]Charges 3 and 4 against William Burr and Shaun Burr provided:
Charge 3:
Maiming with intent to cause grievous bodily harm
Shaun Bruce Burr and William Bruce Burr on the 1st day of October 2020 at Te Mapara with intent to cause grievous bodily harm to [the male complainant], maimed him. Crimes Act 1961
Sections 188(1) and
66
Particulars: Occasion when the complainant’s fingertip was sawn off with a knife.
Charge 4:
Maiming with intent to injure
Shaun Bruce Burr and William Bruce Burr on the 1st day of October 2020 at Te Mapara with intent to injure [the male complainant], maimed him.
Crimes Act 1961
Sections 188(2) and
66
Particulars: Occasion when the complainant’s fingertip was sawn off with a knife.
[4] The Crimes Act 1961 contains no definition of maim or maiming. Instead s 188 provides only:
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2)Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
[5] Considering the issue prior to trial I noted that the Bench Book contained only the following definition of maiming:
Maim means to so deprive a person of the use of a limb as to make that person less able to fight, either offensively or defensively. It does not mean that the limb has to be severed or permanently disabled. It means that for the time being the limb cannot effectively be used.
[6] No authority was identified for this definition but on first principles it appeared not only archaic but clearly wrong. It is difficult to envisage any situation whereby the preservation of the ability of a victim to fight offensively could possibly be relevant in contemporary New Zealand society, while equally the definition would appear to legally preclude the ability to maim a baby or some other person otherwise incapable of fighting.
[7] Following commencement of the trial, Crown counsel Ms Mann opened to the jury that with regard to the two maiming charges:
For [these charges] the Crown must prove that [the male complainant] was maimed. And what that means is that he was wounded so that part of his body was permanently damaged.
[8] From the definition used by the Crown I constructed the following working definition of maim which I included in the draft question trail provided to counsel in the course of the trial:
Maim means to mutilate, lacerate, or otherwise impose a disabling wound, or a wound that deprives a person of one or more body parts or deprives a person of the use of all or part of a limb.
[9] There was not time to finalise the question trail prior to the presentation of closing addresses of counsel. Instead the draft question trail was discussed in chambers prior to resumption of the hearing on 10 May 2022. At the time substantial agreement was reached on all issues in the question trail with the exception of the definition of maim. Although no counsel had prepared an alternative definition, they
orally referred me to various dictionary definitions emphasising particular aspects of those definitions.
[10] The primary dispute centred on whether the definition of maim should focus on the permanent loss of a limb as contended for by the Crown or whether the emphasis should be on a disabling wound, as submitted by Mr Morgan on behalf of William Burr. In the course of argument I was referred to two cases, R v Rapana and Murray1 and R v Lee.2 These were the only cases identified by counsel which included any reference to the definition of maim. All counsel accepted that neither was directly on point, noting that Rapana was concerned with the definition of “disfigures” for the purposes of s 188(2) of the Crimes Act, while the discussion of “maim” in Lee was undertaken in the course of a discussion of the defence of consent and in that context had considered a nineteenth century English text which included some commentary on the definition of maim.
Discussion
[11] The starting point for the interpretation of “maim” for the purposes of s 188 is s 10(1) of the Legislation Act 2019 which provides:
The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.
[12] Applying these principles, it is apparent, as Mr Morgan submitted, that each of the four types of actions identified in s 188 contemplates a different type of assault. The distinction between the different types of assault contained in s 188 exercised Willamson J in Rapana. As noted, that case required consideration of what constituted “disfigures” for the purposes of s 188. It was submitted in that case that because “disfigures” was “used alongside words like ‘maim’ which involves the cutting or taking away of some part of a person and consequently that the word has a permanent connotation” that disfigures should also have a permanent connotation.3 Rejecting
1 R v Rapana and Murray (1988) 3 CRNZ 256 (HC).
2 R v Lee [2006] 3 NZLR 42 (CA).
3 R v Rapana and Murray, above n 1, at 257.
that argument McKenzie J concluded that disfigure in the context of s 188 “does not necessarily involve permanent damage”.4
[13] The distinction between the different types of assault that can each amount to wounding for the purposes of s 188 means that it is necessary to be cautious when referring to the mainstream dictionary definitions which include in the definition of maim references to “wound” or “disfigure”. For example, “mutilate” and “lacerate” which I included in my working definition appear to fit more comfortably within the terms “disfigure” or “wound” respectively. For that reason it appeared that an appropriate definition of “maim” as distinct from “wounds”, “disfigures” or “cause(s) grievous bodily harm” needs to focus on those parts of the dictionary definitions concerned with the loss of all or part of a limb or the loss of use of all or part of a limb and that such reflected a position where anybody could be maimed, consistent with the other types of assault identified in s 188.
[14] Taking this approach necessarily required rejection of the type of definition noted in the Bench Book and reflected in the discussion of the Court of Appeal in Lee. In that case, as noted, the issue was with regard to the defence of consent and the Court of Appeal considered an English text, Stephen’s Digest of the Criminal Law (5th edition, 1894) where it was stated:5
That a person can consent to the infliction of bodily injury on him or herself, as long as it does not amount to maim (apart from in the context of surgical operations or in the course of other activities not injurious to the public).
[15] Of particular relevance in the context of the Court of Appeal’s consideration of the issue of consent was the following article contained in the Digest:6
Article 227 - Right to Consent to Bodily Injury Short of Maim
Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim. A maim is bodily harm whereby a man is deprived of the use of any member of his body or any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened, but a bodily injury is not a maim merely because it is a disfigurement.
4 At 257.
5 R v Lee, above n 2, at [178].
6 At [180].
[16] As I noted with regard to the Bench Book definition, it is difficult to see how the type of definition set out in Article 227 (and substantially replicated in numerous other English sources, for example, Blacks Law Dictionary)7 could have any place in a definition of maim for the purposes of s 188. Leaving aside the obviously sexist language which would not be readily cured even with application of s 16 of the Legislation Act, the limitation of maiming to circumstances where it restricts a victim’s “fighting ability” so narrows the definition as to make it effectively meaningless.8 It has absolutely no resonance to the circumstances pertaining today and I do not accept such an approach could possibly reflect the intention of the legislature.9
[17] A consequential effect of the rejection of this type of definition of “maim” is that it becomes no longer necessary to place any emphasis on whether the wound is disabling. Instead, I concluded the focus is on loss of all or part of a limb, noting that limb includes any part of the arm or leg,10 or damage to a limb which results in the permanent loss of use of all or part of the limb.
[18] As a result of these various considerations, I adopted the definition of maim used in this trial, and set out in [1] above.
7 Blacks Law Dictionary (11th edition, 2019) at 1141.
8 Similar observations have been made elsewhere. For example, in Principles of Criminal Law [AP Simester and WJ Brookbanks Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at 20.17.3.3]: “Because of its association with combat defence using hand weapons, the concept may have less relevance in present times than once it had”. The authors referred to the fact that in ancient times, “the punishment for mayhem was the loss of the like part” (Blackstone’s Commentaries on the Laws of England (17th ed, 1830) vol 4 at 205–206), an approach, I observe, that is not in any way compatible with the way New Zealand’s criminal justice system operates today.
9 There does not appear to have been any discussion of the meaning of maim either when the Crimes Act 1961 was enacted or indeed at the time similar provisions in the Crimes Act 1908 were adopted. See Crimes Act 1908, s 197, being the equivalent provision to s 188 which states “Every one is liable to imprisonment with hard labour for life, and if under sixteen years to be once whipped, who, with intent to maim, disfigure, disable, or do any grievous bodily harm to any one... wounds or does actual bodily harm to any person”.
10 Limb is defined in Dorlands Illustrated Medical Dictionary (32nd Edition, 2012) as “one of the paired appendages of the body using locomotion or grasping. The terms arm and leg are commonly used for the human upper and lower limbs, but in technical anatomical terminology those terms refer to only part of their respective limbs”. The definition of limb therefore includes all parts of the hands and feet as well as the arms and legs.
Powell J
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