R v S
[2016] NZHC 1185
•26 May 2016
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
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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 DefendantJudgment:
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 H’s
finger. He demonstrated during his evidence before me a short, chopping, over-the-
1 Crimes Act 1961, s 188(2).
2 I directed the jury accordingly. Mr S was convicted of the charge.
3 Ms H said that she had denied the abuse but that Mr S “drilled her and drilled her” until she gave
in and told him what she thought he wanted to hear.
shoulder swing. He said he could have swung harder. Nevertheless, the blow caused a wound which bled profusely and fractured two of the bones in the finger, displacing the pieces laterally. Ms H was, of course, in considerable pain. She was screaming with it. Mr S calmed her down and called an ambulance. The damage to the finger required surgery to realign the broken parts of the bones. Ms H was kept in hospital overnight.
[6] As the Court of Appeal has commented,4 it is rare for a person to consent to serious injury. Usually, the issue is whether the injured person consented or not; with consent being a true and voluntary consent by someone with a proper appreciation of what they were consenting to.
[7] However, this is one of those rare cases. Ms H admitted to the Police, and maintained in her evidence, that she consented to her finger being broken. She wanted to stay in her relationship with Mr S and this was his condition. So, she voluntarily put her finger on the brick knowing that he would strike it with the hammer and break a bone or bones. She knew that would hurt a lot. Ms H did say that the actual damage caused was more than she had expected and she had not anticipated that she would need surgery.
[8] There is no evidence that Mr S intended to do more than cause a breaking of a finger bone and so I did not take into account the actual extent of the damage inflicted by Mr S in reaching my decision to withdraw consent as a defence. As the Court of Appeal emphasised in Lee, the defence of consent is intention based, not result based.
Issues
[9] There were two issues for me to decide:
(a) As a matter of law, can a Judge withdraw consent as a defence to a charge of wounding with intent to injure?
4 R v Lee [2006] 3 NZLR 42 (CA) and R v Barker [2010] 1 NZLR 235 per Glazebrook J.
(b)If so, are there public policy reasons in this case that should compel me to withdraw consent as a defence?
Discussion
Can the defence of consent be withdrawn if the charge is wounding with intent to injure?
[10] Consent to violence is a common law defence.5 The Full Court of the Court of Appeal in R v Lee had to decide the nature and extent of the defence in New Zealand law. Counsel for Mr S submitted that a proper reading of Lee has the Court of Appeal holding that the defence of consent is always available (with specific exceptions, such as fighting) unless the level of violence intended is at the grievous bodily harm level. Counsel relied particularly on the judgment of O’Regan J who was part of the majority in the later case of R v Barker:6
[135] Where “mere bodily injury” is intended and caused, i.e. no serious injury is intended, consent will always be an available defence, except in relation to fighting. Other per se exceptions may be recognised in the future, but these are likely to be rare: Lee at [295]—[296] and [314]—[315].
[136] However, where grievous bodily harm is intended or the perpetrator acts with reckless disregard for the safety of others, consent will be available as a defence unless there are public policy reasons that require the judge to withdraw the defence. The policy reasons must outweigh the social utility of the activity and the value of personal autonomy: Lee at [300]—[309] and [316].
[137] This distinction is important in the present case, because the offences for which the appellant was convicted were counts of injuring with intent to injure and wounding with intent to injure. The charges which the appellant had to answer were, therefore, ones which fell in the first category above, as no allegation of intent to cause grievous bodily harm or of recklessness as to the infliction of grievous bodily harm was made by the Crown. Following Lee, consent would therefore be an available defence unless the circumstances warranted the development of a rare exception to this rule.
[11] With respect, my reading of Lee concurs with the view of Glazebrook J, who was the minority Judge in Barker (and the Judge who delivered the Court of
Appeal’s judgment in Lee).7 That is to say, Lee does not specifically deal with
5 Crimes Act 1961, s 20, preserves common law defences except so far as they are altered by or are inconsistent with statute. Consent to violence remains a defence at common law in New Zealand.
6 R v Barker, above n 4.
7 R v Barker, above n 4, at [64]–[66] per Glazebrook J.
categories of intended harm that lie between mere bodily injury and grievous bodily harm. But, the principles must apply. Since the other majority Judge in Barker (Hammond J) based his analysis on acceptance by the Full Court in Lee of the approach of Lord Mustill in R v Brown,8 I take it that the analysis by O’Regan J is a minority view.
[12] I am fortified in this conclusion by the judgment of the Supreme Court in Ah- Chong v R.9 The majority in that case held:10
The circumstances in which consent can be a defence of a charge of assault were considered in some detail by the Full Court of the Court of Appeal in R v Lee. In that case, the Court held so far as the common law of New Zealand was concerned:
(a) The common law position in relation to consent is preserved by s 20 of the Crimes Act, except to the extent that consent is dealt with specifically in particular statutory provisions.
(b) Where consent is available as a defence, an honest but mistaken belief by the perpetrator in consent will also provide a defence. The mistaken belief need not be reasonable.
(c) Consent can be a defence to an assault where no serious injury is intended and caused except in the case of fighting.
(d) In relation to intentional infliction of harm that is greater than
“mere bodily harm”, consent may be a defence unless:
(i) there are good public policy reasons to forbid it; and
(ii) those policy reasons outweigh the social utility of the activity in question and the value that society places on personal autonomy.
(e) Where grievous bodily harm is intended, it will be rare for a court to accept that consent is available as a defence. It will be different where an activity (a contact sport, for example) involves the risk of serious injury. In such cases, a court is more likely to accept that consent is available, ie, that participants consent to run the risk of serious injury.
The important feature of this description for present purposes is that public policy considerations are relevant to the courts’ determination of the scope of the consent defence in the context of assault.
[Emphasis added]
8 R v Brown [1994] 1 AC 212 (HL). Lord Mustill applied the principles for all levels of intentional infliction of harm.
9 Ah-Chong v R [2015] NZSC 83.
10 At [50] (footnotes omitted).
[13] In my view, the law is that where a person is charged with wounding with intent to injure, then consent can be a good defence at common law. However, and depending to a significant extent on the level of harm intentionally inflicted, a Judge may withdraw the defence of consent if there are good public policy reasons to do so and those policy reasons outweigh the social utility of the act in question and the value that society places on personal autonomy.
Are there public policy reasons in this case which compel the withdrawal of the defence of consent?
[14] First, I consider that the level of harm intended is towards the grievous bodily harm end of the spectrum. In the limited time available to me, I did not find a case that classifies a broken finger as grievous bodily harm. I am not surprised by that. Grievous bodily harm means really serious harm. An intention to simply break a finger, as opposed to, say, intending to cause a compound fracture or cause an amputation, is an intention to inflict serious harm.
[15] The Court of Appeal recognises in both Lee and Barker the value that society places on personal autonomy. Put simply, a person has a right to decide what to allow another person to do to their body. That right will not be overborne unless there are real public policy reasons for doing so. As the Court of Appeal said in Lee:11
… A high value should be placed on personal autonomy. Any constraints on human activity must be justified, although the right to personal autonomy will not have the “trumping effect” Feinberg argues for — see for example at
322 of Feinberg, The Moral Limits of the Criminal Law, Volume Four: Harmless Wrongdoing (1988). The test therefore is the one promulgated by
Lord Mustill in Brown, whatever the level of injury intended and caused. As
indicated above, such an approach would fit in with the manner in which the law has developed in New Zealand (see at [281] above), where the tendency has been not to countenance too many limits on the availability of consent as a defence.
[16] An activity which, if voluntarily undertaken, necessarily requires the participants to consent to violence, or the risk of violence, can have real social utility. Contact sports, for example. Few people would argue that rugby does not have
social utility in New Zealand, and boxing still commands considerable support.
11 R v Lee, above n 4, at [300].
[17] The weighing of social utility and the expression of personal autonomy had to be considered in Lee and Barker in areas more at the fringes of social acceptability.
[18] In Lee, the charge was manslaughter. Death occurred as the result of numerous assaults carried out during the performance of an exorcism. The Court held that consent was available as a defence in the case as a matter of law, subject to a possible exclusion on public policy grounds if the exorcist was reckless or intended to cause grievous bodily harm. The Court found that the exorcism was a manifestation of religious beliefs, and that freedom of religion is a fundamental right. The social utility is integral. Therefore, it was an error of law for the trial
Judge to have withdrawn the defence of consent from the jury.12
[19] In Barker, the defendant was convicted of injuring with intent to injure a
15 year old girl and wounding with intent to injure a 17 year old girl. The defendant had an interest in bondage, discipline and sadomasochism. Pursuant to that interest, he used against the girls the practice of “scarification”, meaning that he used a scalpel to cut or incise their skin to produce permanent or semi-permanent scars. This was for his personal gratification, including sexual gratification.
[20] The majority, for different reasons, held that the trial Judge was wrong to withdraw consent as a defence. Justice Hammond put it this way:13
I should however make it plain that I share with the trial Judge, and Glazebrook J, complete dismay and distaste at the exploitative and tawdry activities of Mr Barker in relation to these young women. Nevertheless, the fact that such activities would likely be seen as abhorrent by the vast majority of New Zealanders is not a reason, in and of itself, to remove an otherwise applicable defence. As the Full Court said in R v Lee (at [296]), “Judges should be very wary of creating exceptions based on their own personal views of acceptable behaviour”.
[21] Justice O’Regan based his decision largely on his view that the level of
intention to harm encapsulated by the charges meant that consent was a defence that had to be left to the jury. In relation to the individual factors which Glazebrook J
12 R v Lee, above n 4, at [344].
concluded justified the exclusion of consent as a defence in the case of the 17 year
old girl, O’Regan J said:14
… I give considerable weight to the cautions in Lee at [296] that judges ought to take care not to impose their personal views on the conduct of others, and ought to have a high level of respect for the personal autonomy of participants in voluntary activities involving the infliction of harm (at [300]).
[22] Taken together, the Judges found some, or limited, social utility in the practice of scarification – similar to that in tattooing and body piercing. It was noted that different cultures can place different values on such practices.
[23] In this case, the context of the breaking of the finger was to resolve a dispute in a domestic situation. It was a punishment proposed by a partner in an intimate domestic relationship for the expiation of a wrong by the other partner. I see no social utility in the deliberate infliction of serious harm in a domestic relationship as a condition for maintaining the relationship.
[24] As to public policy reasons for the displacement of personal autonomy in this case, I find them to be these:
(a) Domestic violence is a major problem in New Zealand. We have the highest reported rate of intimate partner violence in the developed world.15 Society in general does not regard domestic violence as tolerable. Indeed, as the “anti-smacking” legislation shows, society’s views are hardening in rejection of all forms of domestic violence. It is 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.
(b)In this case, there was a significant power imbalance in the relationship. Ms H was a teenage girl who ran away from State care. She moved in with the much older and more mature Mr S. It was his
house. Ms H had no income. She was very much dependent on Mr S
14 At [147].
for her physical and emotional wellbeing. It is against public policy to enable a dominant partner in a relationship such as this one to use his dominant position as a lever to gain consent to the infliction of serious harm.
(c) Ms H was vulnerable also because of her mental health difficulties and her record of self-harm. Mr S was aware of these factors. I infer that he knew she was particularly vulnerable. It is against public policy to enable a dominant partner in a domestic relationship with a particularly vulnerable partner to take advantage of that vulnerability to gain consent to the infliction of serious harm.
(d) There is a gender issue:16
Gender is a significant risk factor for family violence victimisation and harm across all forms of family violence, and in intimate relationships women are more likely than men to experience severe physical and psychological harm.
It is against public policy to condone a mature man intentionally inflicting serious harm on a teenage female with whom he is in an intimate domestic relationship.
[25] My answer to the question of whether there are policy reasons which compelled me to withdraw the defence of consent in this case is that the above are such reasons. It is not a matter of personal preference, although I share fully the attitude of society to domestic violence which I set out above. In my view, applying Lee, as summarised by the Supreme Court in Ah-Chong, 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 punish the consenting partner and where the consenting partner is particularly vulnerable by age, financial reliance, psychological problems and
gender.
16 Law Commission Report, above n 15, at 16.
[26] I do not intend this statement of the law to establish a new per se exception to the common law defence of consent. It is a statement arising from, and applicable to, the facts of this particular case.
[27] For completeness, I took into account that withdrawing the defence of consent to this charge would mean inevitably that Mr S would be convicted. That is
because he admitted that he deliberately broke Ms H’s finger with a hammer.
Brewer J
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