Steffens v Police

[2014] NZHC 970

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-010 [2014] NZHC 970

BETWEEN

KIM-MAREE STEFFENS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 May 2014
Appearances:	S N Claver for Appellant E Higbee for Respondent
Judgment:	9 May 2014

RESERVED JUDGMENT OF MANDER J

Introduction

[1]      This is an appeal from a decision of Judge Cook convicting the appellant on a charge of assault laid under s 9 of the Summary Offences Act 1981.  The appeal is based on a submission that the learned Judge made an error of law in her interpretation of the definition of “assault” which led to an incorrect finding of guilt.

Factual background

[2]      The assault charge arises out of a confrontation between the appellant and another woman, both of whom had been drinking.  The prosecution case was that the appellant sought to punch the victim with a closed fist.  The punch was avoided by the victim moving her head which resulted in the appellant’s fist striking the victim’s cap and then brushing her face and glasses.

[3]      The appellant’s account provided by way of a video recorded interview was that,  after  the  two  protagonists  had  directed  abuse  at  each  other  and  while  in

proximity to the defendant, she leaned over and tapped the victim’s cap with an open

STEFFENS v NEW ZEALAND POLICE [2014] NZHC 970 [9 May 2014]

hand.  The appellant accepted that her hand, as a result of the victim’s reaction, then grazed the victim’s glasses. The appellant stated she did not intend to hit the victim.

[4]      Judge Cook, after hearing conflicting accounts from the complainant and the other witnesses, proceeded on the basis of the appellant’s account.   Her Honour concluded that it was clear there was an intention to confront the victim and abusive words exchanged prior to the incident. The learned Judge observed:

[9]       In my mind whether it was an open hand force downwards or an attempted punch is irrelevant.   In turning to the definition of assault the intentional application of force is all that is required.  There was nothing in the evidence which would suggest that the downward movement of the hand on Ms Waerehu’s cap was in any way unintentional or an automatic reaction. It was clear, and it seemed to be clearly accepted, that it was an intentional act.

[5]      Judge Cook concluded that it did not matter that the “intentional downward force or punch” only made contact with the victim’s hat, stating that the definition of assault is “directly or indirectly”.   The Judge went on to note that the appellant herself admitted that her hand grazed the victim’s glasses and that it did not matter that the appellant “never intended” to hit her because that was not material to the definition of assault.

[6]      Finding it unnecessary to determine whether it was a closed punch or an open hand that made contact with the victim, the charge was found proved.

The appellant’s submission

[7]      Mr Claver accepted that the appellant intended to “flick” the victim’s cap and did so.  It was submitted however that the appellant did not intend to hit the victim and that the Judge when proceeding on the basis that “it did not matter that she [the appellant] never intended to hit her” could not conclude that an assault had been established.

[8]      Mr Claver submitted that this finding illustrated the Judge’s error of law because an essential element of the charge of assault is the intention to apply force to the person of another.   It was submitted that the actus reus upon which the Judge proceeded to analyse the charge was the flicking of the cap, and that while the

appellant’s intent was indeed to flick the cap, Mr Claver submits this could not constitute an assault because there was no intention to apply force directly or indirectly to the victim herself.

Submission for the respondent

[9]      The  Crown  submit  that  the  District  Court  Judge  made  no  error  in  her application of the law to the facts.  The appellant it is submitted plainly intended to strike the victim’s cap and the definition of assault includes the indirect application of force.  Reliance is placed on Thomson v NZ Police,1 where the deliberate removal of a person’s hat constituted an assault.  While the appeal in that case was centred on the issue of implied  consent,  it  was  submitted by Mr Higbee  on  behalf  of the respondent that the case was an example of how the intentional touching of clothing can constitute an “indirect assault”.

Analysis

[10]     The definition of assault in the Summary Offences Act is the same as that prescribed in the Crimes Act 1961:

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, …

[11]     The District Court decision and counsels’ written submissions focused on the application of indirect force.  Judge Cook proceeded on the basis of the appellant’s account that she intentionally applied force to the victim’s cap.  There was nothing indirect in the way she did that, using her hand to strike or touch the cap.   As Mr Claver developed in his oral submission, the Judge made no evidential finding that the appellant intentionally sought to apply force indirectly to the victim’s body. Although that may have been the result, she did not intentionally seek to do that. Therefore,  it  was  submitted  the  Judge’s  conclusion  that  it  did  not  matter  was

erroneous.

1      Thompson v NZ Police [2012] NZHC 1500 .

[12]     It is clear however that Judge Cook appreciated that the force applied to the cap worn by the victim had to be intentional, and as observed by the learned District Court Judge that had been admitted by the appellant.  The question that arises on the accepted facts of this case is whether applying force to an article of clothing being worn by a person is the intentional application of force to “the person of another”.  In my view that removes the complications that may arise out of an analysis involving whether a resulting indirect application of force in the circumstances had to have been intended and whether any such indirect force could be considered accidental.

[13]     The common law has long held that the touching of clothing can constitute an assault,2  and that it is not necessary that the victim actually feel the assault or any force.3     An  assault  does  not  necessarily involve  “violence”  within  the  ordinary meaning of that word.4     An offender’s conduct however must be intentional and without consent or other justification.   The law provides for and allows physical

contact  which  is  generally acceptable  in  the  ordinary  conduct  of  everyday life. Where  such  contact  is  necessary  or  customary  it  will  not  constitute  an  assault because consent is implied.5   This was the issue examined by Asher J in Thompson v

NZ Police.6    In that case the intentional application of force was to the headwear

worn by the victim.  The removal of a beanie which was thrown to the ground was not considered the type of everyday contact impliedly consented to as generally acceptable in the ordinary conduct of daily life.

[14]     It is clear from the appellant’s own account that the appellant’s application of force to the victim’s cap was in the context of a confrontation, the prelude to which had been an exchange of abusive texts and swear words.  The appellant admitted to being frustrated and angry, although she later qualified this by suggesting she was hurt and gutted.  While the appellant stated that she never intended to hit the victim,

that statement was made in the context of her admission that her hand accidentally

2      R v Thomas (1985) 81 Cr App Rep 331 at 334; Thompson v NZ Police above at n 1.

3      R v Thomas (1985) 81 Cr App Rep 331 at 2; Moir v Police HC Christchurch AP220/86, 10

November 1986.

4      Police v Raponi (1989) 5 CRNZ 291 at 296.

5      Collins v Wilcock [1984] 3 All ER 374 at 378; R v Jones [1987] Crim LR 701 (CA); Attorney-

General’s Reference (No 6 of 1980) [1981] 2 All ER 1057 at 1059.

6      Above n 1.

grazed the victim’s glasses, and in my view is what the District Court Judge was referring to in her decision where she remarks on the appellant’s lack of intent.

[15]     On the appellant’s own admission, what she did in deliberately “tapping” the victim’s cap in the circumstances, was capable of constituting an assault as that offence is defined in the Summary Offences Act 1981.  Clearly it was a very minor assault and was dealt with as such by Judge Cook when she convicted the appellant and ordered her to appear for sentence if called upon within the next 6 months.

[16]     The  District  Court’s  judgment  is  therefore  confirmed  and  the  appeal dismissed.

Solicitors:

Simon Claver Barrister, Dunedin

Crown Solicitor, Invercargill