R v S - [2016] NZHC 1185

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF ANY PERSON UNDER THE AGE OF
18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRES, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-14614 [2016] NZHC 1185

THE QUEEN

v

S

Hearing: 26 May 2016

Counsel:

Y V Yelavich and L E Nunweek for Crown
M W Ryan and D H P Schellenberg for Defendant

Judgment:

26 May 2016

Reasons:

2 June 2016

JUDGMENT OF BREWER J

Solicitors: Kayes Fletcher Walker (Auckland) for Crown
Counsel: Mark Ryan (Auckland) for Defendant

R v S [2016] NZHC 1185 [26 May 2016]

Introduction

[1] Mr S stood trial on a charge of wounding Ms H with intent to injure her.1 At the close of the Defence case, I confirmed the conditional view I had expressed at the close of the Crown case; namely, that consent was not a defence to the charge.2 I said I would give my reasons later, and I now do so.

Background

[2] Ms H, a 16 year old runaway from State care, encountered Mr S, a 38 year old solo father, in mid 2014. She moved in with him and his two small children almost immediately. She lived with him as his partner for five months.

[3] Ms H was a troubled young woman. She had mental health issues and a history of self-harm. Her relationship with Mr S was volatile at times. In December
2014, when Ms H was 17 years old, she confided to Mr S that, in the past, allegations had been made that she had sexually abused her siblings. Soon afterwards, Mr S decided that Ms H had sexually abused his six year old daughter. He confronted her and she admitted the abuse.3 Mr S later told the Police that he was wild with her. He told her that if she wanted to stay with him he would have to break her finger. He said he wanted to punish her for what she had done and chose her right index finger to be broken because that was the finger which he thought had touched his daughter.

[4] Mr S said that Ms H agreed to having her finger broken. So, he went and got a paving brick and a hammer. He got her to put a gag in her mouth because he did not want her screams to wake the children. He said he put on a favourite Judge Dredd song and told Ms H that sometime during the song he would break her finger. She had put her right index finger on the brick and covered her eyes.

[5] During the playing of the song Mr S swung the hammer and struck Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v S

Details

AGLC: R v S [2016] NZHC 1185
Case: [2016] NZHC 1185
Decision Date: 26 May 2016

CaseChat Overview and Summary

The case of R v S involved Mr S, who was charged with wounding Ms H with intent to injure her. Ms H, a 16-year-old girl, had moved in with Mr S, a 38-year-old solo father, and lived with him as his partner for five months. Mr S believed that Ms H had sexually abused his six-year-old daughter and decided to punish her by breaking her right index finger. He struck Ms H's finger with a hammer while playing a Judge Dredd song. Ms H had consented to having her finger broken as a condition to stay in the relationship. The primary legal issue in this case was whether consent could be withdrawn as a defence to a charge of wounding with intent to injure and if there were public policy reasons to compel the withdrawal of the defence in this particular case.

The court considered the nature and extent of the defence of consent in New Zealand law, noting that it is a common law defence, preserved by s 20 of the Crimes Act 1961, except where specifically dealt with in statutory provisions. Consent can be a defence to an assault where no serious injury is intended and caused, except in the case of fighting. However, in cases of intentional infliction of harm that is greater than "mere bodily harm," consent may be a defence unless there are good public policy reasons to forbid it, and those policy reasons outweigh the social utility of the activity in question and the value that society places on personal autonomy. In cases where grievous bodily harm is intended, it will be rare for a court to accept that consent is available as a defence.

The court found that there were public policy reasons in this case which compelled the withdrawal of the defence of consent. The deliberate infliction of serious harm in a domestic relationship as a condition for maintaining the relationship had no social utility. Additionally, there was a significant power imbalance in the relationship between Mr S and Ms H, with Ms H being a teenage girl who was particularly vulnerable due to her age, financial reliance, psychological problems, and gender. The court concluded that it was against public policy to permit consent to be a defence to the infliction of serious harm within a domestic context, especially where the context is punishment and expiation.

Final orders:

Mr S was convicted of the charge of wounding with intent to injure Ms H.

Orders