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Court of Appeal of New Zealand |
Last Updated: 2 February 2018
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THERE ARE SUBSISTING SUPPRESSION ORDERS WHICH REMAIN IN FORCE AS TO THE NAMES OR ANY PARTICULARS LIKELY TO LEAD TO THE IDENTITY OF THE COMPLAINANTS AND SOME WITNESSES IN THIS CASE.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA733/2008 [2009] NZCA 186
THE QUEEN
v
RICHARD JEFFREY GEORG BARKER
Hearing: 3 February 2009
Court: Glazebrook, Hammond and O'Regan JJ Counsel: T W Fournier for Appellant
A Markham for Crown
Judgment: 15 May 2009 at 10.00 am
JUDGMENT OF THE COURT
A The appeal is allowed, the convictions are set aside and a retrial
ordered.
R V BARKER CA CA733/2008 15 May 2009
B Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other publicly available database until final disposition of re-trial. Publication
in Law Report or Law Digest
permitted.
Glazebrook J (dissenting)
[1] Hammond J
[93] O’Regan J
[133]
GLAZEBROOK J
Table of Contents
Para No
Introduction [1] The background [6] Complainant A: injuring with intent to injure [8] Complainant B: wounding with intent to injure [20] Expert evidence [33] The trial Judge’s factual findings [40] The trial Judge’s ruling on the defence of consent [46] The parties’ submissions [51] The law in New Zealand on the defence of consent [54] Application to this case [68]
Should the defence of consent apply where mere scarification is
involved? [69]
Should the defence apply with regard to scarification in a
sexual context? [72]
What is the position if more than mere bodily injury is
intended? [79]
Did the factors identified by the Judge justify removing the
defence? [82]
Result [90]
Introduction
[1] Mr Barker was convicted, following a trial by judge alone (Judge Phillips) in the District Court, of one count of injuring with intent to injure, contrary to s 189(2)
of the Crimes Act 1961, and one count of wounding with intent to injure,
contrary to s 188(2). Mr Barker was acquitted of five counts
of
indecency.
[2] The two counts on which Mr Barker was convicted related to two
female complainants, who were respectively aged 15 and 17
years at the time of
the offending. I will call them A and B in this judgment. Two of the indecency
counts of which Mr Barker was
acquitted related to A and B and the remaining
three to another young female complainant, C.
[3] Mr Barker appeals his convictions on the sole ground that the trial
Judge wrongly withdrew the defence of consent on public
policy grounds. It was
accepted at trial, and uncontested in this Court, that the elements of the two
offences of which Mr Barker
was convicted were proved.
[4] There is undoubtedly authority for the proposition that there is a public policy exception, albeit a confined one, to the general principle that consent (and honest belief in consent) is a defence to charges of this character: see R v Lee [2006]
3 NZLR 42 (CA). Mr Fournier, on behalf of Mr Barker, argues, however, that
Lee
was misapplied by the trial Judge in this case.
[5] Before I assess that submission, I set out the background in more
detail, the factual findings of the Judge and summarise
his ruling on
consent.
The background
[6] Mr Barker has an interest in bondage, discipline and sadomasochism (“BDSM”). In 2006, he acquired a house which he set up as a venue for BDSM, with costumes, props and a number of fetish-themed rooms, including what Mr Barker called a “shibari” or suspension room. One of Mr Barker’s interests was the practice of “scarification”, which, in the BDSM context, refers to a form of body modification that involves the cutting or incision of skin to produce permanent or semi-permanent scars.
[7] It is convenient to deal with the counts which gave rise to the
convictions separately and then to detail the medical evidence
and evidence from
the operator of a parlour specialising in tattooing, branding, piercing and
scarification.
Complainant A: injuring with intent to injure
[8] Complainant A, then 15 years old, went to Mr Barker’s
premises with a group of teenage friends (including C who is
referred to at [2]
above) out of “curiosity,” according to her evidence-in-chief. She
had an admitted interest in BDSM
and had a number of body piercings.
[9] When the group arrived at the premises, Mr Barker showed A around.
A had several scars on her arms and chest as a result
of self-harming behaviour,
which she discussed with Mr Barker. When Mr Barker asked her age, she said
that she had replied, truthfully,
that she was 15 years old.
[10] A’s evidence was that Mr Barker then asked her to pose for
him, offering her a shower to warm up as she had been out
in the rain and a
gothic-style costume to wear. Once she had changed into this garb, Mr Barker
grabbed her by the hair and poured
some wine into her mouth. A then agreed to
Mr Barker flogging her with a leather whip.
[11] To this end, Mr Barker led her into the suspension room, tied her up
with fabric and encouraged C to kiss her feet while
he was whipping her. During
the whipping M, one of Mr Barker’s female associates (with
subsisting name suppression)
pulled down the front of A’s dress, applied
nipple clamps to her and ran a sewing tool over her chest. A said that, after
some time, those present became aware that her hands were turning blue and Mr
Barker said something like “not much longer”
and, after a while, she
was untied.
[12] A’s evidence was that she then went outside for a cigarette. When she came back in, she went to the lounge and watched as Mr Barker scarified M’s teenage daughter by cutting patterns into her skin. Mr Barker then told A that he wanted to do something similar to her. A’s evidence was that she did not want this to occur but
that she “complied”. In cross-examination, A agreed that she had
not said or done anything to suggest to Mr Barker that
she was not consenting to
the scarification.
[13] A agreed that there was “possibly” some discussion
beforehand about the cutting and that she was given a “safe
word” to
use in the event that she wanted the scarification to stop. She said that she
did not use the word because “I
suppose I was a bit stubborn”. She
was clear, however, that Mr Barker said nothing to her about the permanence (or
otherwise)
of the scarring.
[14] Using a scalpel, Mr Barker cut a dragon symbol into A’s right
shoulder blade. The significance of this symbol
was that Mr
Barker’s “stage name” in BDSM performance was
“Dragon”. He allegedly asked A to
masturbate while he was cutting
her, and she pretended to do so. He also told her that he wanted to cut her
breasts open.
[15] Mr Barker freely admitted flogging and scarifying A. He also
admitted that she had told him that she was a “cutter”
but that his
impression was that she was not a self abuser but someone who cut herself for
aesthetic purposes. He denied pouring
wine into A’s mouth, asking her to
masturbate, or referring to cutting her breasts. He also denied in
cross-examination that
A had told him that she was 15. He said that she had
told him she was 17. This claim had not been put to A in
cross-examination.
[16] Mr Barker’s evidence was that the whipping took place in the
suspension room on a “shibari” frame. A had
chains slipped over her
wrists which she could hold onto. His evidence was that the whipping lasted for
some 20 to 25 minutes. Mr
Barker was unable to remember whether or not he had
encouraged C to kiss A’s feet during the flogging but he did not think
that he had. According to Mr Barker, A’s scarification took place in the
lounge about 10 to 15 minutes after the flogging and
it was done at A’s
suggestion. Mr Barker’s evidence was that the scarification on M’s
daughter occurred after
he had scarified A. He also said that there was no
sexual angle to scarification for him. It was rather a hobby or
relaxation.
[17] As to the scarification process, Mr Barker’s evidence was that it was performed with A supporting herself by leaning over a table. He used a scalpel with
a new disposable blade. Before starting he wiped A’s shoulder with
sanitation wipes and cleaned his hands. After the scarification
he stemmed the
bleeding with paper towels and then cleaned away the excess blood. He said that
he would have anticipated that the
wounds would take a little more than
a week to close up. Mr Barker gave limited advice to A as to the care of the
wounds.
His evidence was that he had said “keep it clean, you know what
you’re doing”. He had said that because he had
seen evidence of
self-scarification on the part of A.
[18] Mr Barker’s evidence was that the duration of the scars would
depend on how they were treated after the wounds had
healed but he would have
expected the resulting scars to remain for between three months and a year to 18
months, although A could
have made them last many years if she wished. The time
taken for the scars to disappear depended on how quickly the person heals
and
what was done with the scars – for example treating with
“bio-oil” or similar makes the scars disappear more
quickly and
“roughing them up” makes them last longer.
[19] Mr Barker said that he did not discuss “bio-oil” with A
and agreed that there was no prior discussion about how
long the scars would
last. He said, however, that A was well aware of the permanence of scarification
in general terms. The scars
inflicted by Mr Barker on A were still visible at
the time of trial, some two years later.
Complainant B: wounding with intent to injure
[20] Complainant B, then 17 years old, was introduced to Mr Barker by C
after she had expressed an interest in participating in
a pagan bloodletting
ritual. B gave evidence that she had understood from C that the ritual would
involve a drop of blood being
taken from her arm or shoulder area.
[21] Mr Barker picked B and C up and took them to his premises. Although she was shocked by the interior of Mr Barker’s house, she trusted C and did not try to leave. B’s evidence was that Mr Barker questioned her about previous drug use, and allegedly offered her nitrous oxide and party pills, which she took. He gave B a leather corset, a G-string, and high-heeled boots to change into while C changed into
a cloak. Mr Barker wanted C to be naked underneath the cloak, but she
insisted on wearing her underwear.
[22] B became affected by the drugs she had taken and passed
out, at least momentarily. When she awoke, Mr Barker
pulled her into the
suspension room and chained her arms to a beam suspended from the
ceiling. There had been no discussion
beforehand about what was to happen
(either at the premises or on the way to the premises) but she was expecting
from what C had
told her that there would be a drop of blood taken from her
shoulder. She agreed that she was “okay” with this.
[23] Mr Barker was chanting in a language which “sounded
foreign” to B. He then got C to touch her breast and asked
B whether or
not she liked it. She did not answer and then, without saying anything more, he
unzipped her corset and began to cut
her right breast. She said that
she asked him to stop but he would not. Mr Barker then continued with
her left breast
with cuts that seemed more violent and which were more painful.
During the breast cutting, he had his hands on her breasts. She said
that he was
not fondling them but was just pushing his hand up against her.
[24] After he had finished cutting her breast area, B said that Mr Barker
cut her across each wrist. When he had finished this
cutting, Mr Barker
unchained her and, with his body weight, forced her against a mirror, smearing
her blood across the glass. B
denied that Mr Barker had simply shown her how to
rub the cuts against the glass to make a “blood angel”. B also
denied
that her breast area had been wiped with sanitation wipes before the
process started and denied that the design had been traced out
first with a
sterile pen and that she had approved it. She said that Mr Barker was not
wearing gloves or glasses during the
process. She also denied making
encouraging statements to Mr Barker throughout the cutting and denied
asking for more cuts
after the breast cuts.
[25] After Mr Barker had finished, they (including C who had been behind her while Mr Barker was doing the cutting) went to the lounge. B said that Mr Barker then put some needles into C’s arms. She denied she had been shown how to play with the needles in C’s arms and denied that she had done so. B said that C began
sweating and that Mr Barker had told her to have a shower. While C was
having a shower, Mr Barker wiped B’s cuts with antiseptic
wipes despite
her protests and told her to have a shower. She thought that she was also given
some plasters for the cuts. B denied
that paper towels were put over the cuts to
soak up the blood. After B had had a shower, Mr Barker took the two girls to a
food
court before dropping them home. B was later found in a distressed and
disoriented state by her flatmates. She subsequently sought
medical treatment,
and went to the Police.
[26] Mr Barker’s evidence at trial was that B had
specifically wanted a scarification and that they had discussed
the process in
some detail, including the sterilisation methods. According to Mr Barker, B had
decided she wanted a “corset
cut”, an extensive cut in the shape of
a corset around her breasts and torso. Normally a person would be topless
during this
process but she did not wish to be so and he had suggested a bikini
that unzips at the top and bottom. He had got the boots for
her to wear as he
needed to elevate her because she was quite short.
[27] Mr Barker denied offering the girls nitrous oxide or party pills,
claiming they had helped themselves to the former. He
also denied that B had
passed out, saying that she was fully aware at all times. Mr Barker claimed
that B was chained up to provide
“stability” during the cutting and
that C had held B by the hips to steady her further. Mr Barker said that he did
not
like using a table for the first time someone had scarification for safety
reasons and that conducting the scarification in the suspension
room allowed B
to see what was going on in the mirror.
[28] Mr Barker said that he unzipped B’s bra but that it still covered the breasts. He then sterilised the area using sanitation wipes, sterilised the scalpel, sterilised his hands, put a new blade into the scalpel and then put it down on the sanitation wipes. He cleaned a styptic pen (a marker that surgeons use) to mark the area to cut. B approved the design. He then tensed the breast area using the bra and cut around each breast. He denied touching B’s breasts. He claimed that during the cutting process B was enjoying it and making encouraging remarks such as “[o]h wow, this is amazing.” When he had finished doing the cutting around both breasts, B asked him to continue. He declined to do any more on those cuts because further scars at that stage would have interfered with B’s sleep.
[29] Mr Barker said that he then asked B if she would like to see a blood
angel and she said “Ah yeah cool”. He explained
to her that he
would put a cut on each of her wrists and then, instead of a snow angel, would
make a blood angel on glass. According
to Mr Barker, B agreed to this. He
thought the cuts on the wrists were no deeper than the cutting he had done
around the breasts.
About 15 minutes after B’s wrists were cut, the
needlework on C took place and he said that he let B play with the needles
after
sterilising her hands. It was then that C had some type of reaction and he took
the girls to the mall for something to eat
and then dropped them
home.
[30] Mr Barker agreed that he was cutting in order to leave scars on
B’s skin and not simply to obtain blood. He also agreed
that he had cut
her at the depth he did but said that he did not think of it at the time as
particularly shallow or particularly
deep. He said that he had not specifically
asked B how long she wanted the scars to last for but that he had possibly said
that they
would last three to 18 months. His memory was that B had wanted
something semi-permanent of this nature. He reiterated his earlier
evidence
that his experience was that a scar with treatment would, depending on the
individual, last three to 18 months but that
it would last longer “if you
rough it up”. Mr Barker gave no evidence that he had advised B as to
after care of the
scars.
[31] Mr Barker’s evidence was that he had completed a partial
corset cut on B. A full corset cut would normally take two
or perhaps more
visits. Mr Barker said that he had told B that, if she wanted the design
completed, she would have to come back.
He left it to B to contact him for the
next stage. He said, however, that B must have afterwards had someone else do
some cutting
on her as there appeared to be an overcut on some of the cuts.
The cuts were uneven, with a curve that was “absolutely
horrendous.”
[32] B’s scars were still apparent at the time of trial and
appeared to be of a particularly crude and disfiguring nature.
Expert evidence
[33] Evidence was given by a nurse at the medical centre that B visited some two days after the cutting. The nurse said that all the injuries seemed to be the same age
and to have been sustained recently. They had well defined edges and
appeared to be approximately three millimetres deep. The injuries
were
sufficiently severe that she would have arranged for them to have sutures if the
wounds had not been too old for this to occur.
The wounds all looked clean,
apart from the one on the left side of B’s chest which looked “a bit
weepy”.
[34] As noted above, the Crown also called evidence from the operator of a parlour, specialising in body modification. His evidence was that, for all procedures in the parlour, the subject is required to sign a consent form, which fully explains the procedure. They will not do any procedures in the parlour on someone who is under
16 years unless it is ear or navel piercing and, even then, only with the
consent of a parent or guardian. He said that it would
depend on the
circumstances whether they would work on someone who had used recreational
drugs. They would take into consideration
that some drugs will impair
judgement and they would probably refuse to work on someone who showed signs of
increased heart rate
and skittishness.
[35] The operator distinguished between scarification and blood play.
The latter involves a short and shallow cut to obtain blood
for the purposes of
ritual, sexual gratification or bonding purposes. He said that the idea behind
scarification is to achieve
permanent scars and that a scalpel is the most
common tool. If cuts are shallow and very minor then they will fade but this
will
take some time. The process can be helped with oils. With scarification,
the scarring “for all intents and purposes is
permanent”.
[36] Any scarification they do in the parlour is done in an area set up as a sterile environment. The subject would usually be lying on a flat surface such as a massage bed for stability and also so that, if they start to feel faint or nauseous, they do not fall or harm themselves. If a surface moves while any procedure is being carried out then there is also the risk of misplacement or cutting too deeply. The operator’s evidence was that, properly carried out with clean equipment and proper after care, the risks of scarification are relatively low. However, if there is dirty equipment, then there is an infection risk and, if an operator is inexperienced, then there is the risk of cutting too deeply and causing nerve damage. He said that they would
usually be trying for a one to three millimetre cut to avoid any issue of
nerve or vein damage.
[37] When asked to comment on the photographs of the particular cuts in
this case, the operator’s evidence was that A’s
scarification
seemed to him to be a “perfectly fine scarification.” It was
healthy with cuts of consistent depth.
That kind of result would be something
his parlour would find satisfactory. (Having viewed the photographs, I take a
much less
charitable view of A’s scars from that expressed by the parlour
operator.)
[38] The parlour operator’s evidence with regard to
B’s scarification was different. He said that the scars
on B’s
wrists were not a design or pattern and that they looked more like someone who
has harmed themselves. As to the cuts
to B’s breasts, he said that the
cuts looked shallower and less consistent in depth. The curves were not nice
smooth curves,
which could be due to using an inadequate blade or instability of
the surface. He considered that the cutting on B looked like something
done by
a novice or by a person with less experience. If he had been doing the cuts
around B’s breasts, he would have had
her lying on her back with the
breasts falling to the side. He would have then put pressure partly on the
breast and partly on the
sternum to get tension over the skin surface in order
to do the cuts.
[39] The operator’s evidence was that B’s wrist scars
would definitely be permanent and that some of those
around the breasts would
lighten but there would still be evidence that there had, at some stage, been
cuts there.
The trial Judge’s factual findings
[40] The Judge said in his sentencing remarks that all of the complainants were fragile young people. He noted that Mr Barker had some experience and self- proclaimed self-expressed skill in scarification but that the scarification on both A and B was done in the circumstances of BDSM, not in a clinical type of tattoo parlour. On the overall view of the evidence for sentencing purposes, the Judge found that the scarification was more of a blood letting or “edge play” as Mr Barker described it. The clothing that was used was part of the BDSM environment, it was
provocative and it was supplied by Mr Barker. There was also nitrous oxide
and party pills containing BZP at the house, which appeared
to be the haunt of
young people. The Judge noted that these young persons were on the
premises with Mr Barker who was
50 years of age at the time.
[41] The Judge was far from impressed by Mr Barker’s evidence. He
described it as “calculated and entirely self-serving”
and
ultimately put Mr Barker’s version of events to one side. In particular,
the Judge found that A had told Mr Barker that
she was 15. The Judge also did
not believe Mr Barker’s detailed version of what he had allegedly
discussed about scarification
with B in the truck during a ten minute drive and
in the house prior to the cutting. He also said that he found Mr
Barker’s
assertion that some unknown person had done further cuts around
B’s breasts nonsensical. The true inference from all of the
evidence was
that the inconsistent cut lines and shape were due to the position B was in and
the instability as she hung there and,
to a certain degree, to the nature of the
skin around the breast area.
[42] The Judge, however, also found A’s evidence unconvincing and
that B’s evidence posed difficulties. In his verdict
the Judge, with
regard to the indecent assault charge relating to B on which Mr Barker was
acquitted, said that he did not find B
to be a “witness of the
truth”. Further, in his sentencing remarks the Judge said that he was not
convinced that Mr
Barker had actually physically supplied drugs to B.
Critically for this case, the Judge at sentencing also said that the
“evidence
does not make me sure that she did not consent, it being a
matter that has to be established beyond reasonable doubt by the Crown
that she
did not consent.” He explained that, in assessing B’s evidence in
that regard, he had taken account of her earlier
lies as to what had happened,
the inconsistencies in her evidence and the fact that her recall may have been
affected by drugs.
[43] The Crown had argued at sentencing that, although consent had been withdrawn as a defence, it would still be an aggravating feature at sentencing if B did not consent and there was no honest belief in consent. Because the issue of consent arose at sentencing rather than at the time of conviction, the issue did not receive the attention it otherwise would have. When assessing the issue of consent at sentencing with regard to B, for example, the Judge did not attempt to assess whether the level
of injury to B exceeded that to which consent may have been given –
see the discussion at [61] below. There was also a possible
question of whether
any consent was properly informed – see at [309] of Lee. In this
context, that would require no more than that B had to have been informed, at
least in general terms, of what was proposed
before she could have
consented to it. (The Judge in fact rejected Mr Barker’s evidence
of a detailed explanation
– see at [41] above.) It would have been much
better if the Judge had dealt in his verdict judgment with the defence of
consent
in the alternative, in case his decision to remove consent as a defence
was overturned. This is particularly the case as the Judge
was dealing with a
situation that was outside the recognised limits explicitly recognised in
Lee: see below at [67].
[44] As to the level of harm, the relevant counts allege injuring and
wounding (respectively) with intent to injure. The Judge
does not seem to have
been asked to make (and did not make) any finding that the level of harm
inflicted or intended was greater
than set out in the charges. Indeed, while
the Judge’s remarks are somewhat unclear, the Crown accepts that the Judge
seems
to have found that grievous bodily harm was not intended or
caused.
[45] I find the conclusion that grievous bodily harm was not caused in
this case, particularly in relation to B, somewhat surprising.
The issue with
regard to consent is of course intent rather than result – see below at
[55]. Even on Mr Barker’s evidence,
he intended to cause long lasting
scars on A’s shoulder and intended to achieve a corset cut and cuts across
the wrists with
regard to B that would last (he said) between three to 18 months
and possibly more. Thus, Mr Barker’s intention and what occurred
seems to
have coincided. However, for the purposes of this appeal, I am confined to the
finding made by the Judge that grievous
bodily harm was not proved to have been
intended or caused.
The trial Judge’s ruling on the defence of consent
[46] Because the Judge was sitting alone without a jury, he was required to deliver a verdict which “need not be supported by elaborate reasons”: see R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 at 237 (CA). However, on the question of the withdrawal of
consent, a Judge (whether sitting alone or with a jury) is required to give
full reasons in order to provide guidance in future cases
and for appellate
review - see Lee at [307]. The reasons given in this case with regard to
consent could have been fuller but, on balance, were sufficient to satisfy
that
requirement.
[47] The Judge summarised his reasons for withdrawing the defence of
consent in his verdict judgment as follows. He said that
in the circumstances
of this case there were good public policy reasons for removing the
availability of consent for Mr
Barker in relation to both complainants. These
were:
(a) The particular ages of each of the complainants. In this regard, the Judge noted the United Nations Convention on the Rights of the Child (UNCROC), the provisions of Parts 9 and 10 of the Children Young Persons and Their Families Act 1989, the provisions of the Crimes Act 1961 when dealing with young persons and people under the age of 16 years, the Evidence Act 2006, the Prostitution Reform Act
2003, the Minors Contracts Act 1969 and the limitations placed on persons
under the age of 18 in relation to alcohol, gambling, smoking
and
driving.
(b) The fact that the reason for such controls and limitations is to
protect those young members of society from not only themselves
but also from
situations where someone of more maturity would be able both to make and
announce inappropriate decisions to and for
them.
(c) The activity of scarification. Having listened to all of the evidence, the Judge held that it involves the cutting of a pattern into the skin of a person with the intent of leaving a scar (which can be somewhat transitory or permanent). The Judge said that in this particular case complainant A was 15 and the complainant B, 17. In his view, the public policy reasons relating to persons of this age outweigh the social utility (if any) of scarification to them.
(d) The fact that both complainants were young persons falling within
the definition of “child” in UNCROC. As
such the fact of their age
places a number of legal restrictions on their personal autonomy. In the
Judge’s view the
public policy reasons he had outlined
outweighed the value placed in our legal system on personal
autonomy.
[48] With regard to A, he considered that particular public policy reasons
for excluding the defence of consent were:
(a) Mr Barker being aware of her previous history of self
mutilation.
(b) The general sexual/BDSM overtones including the clothes/the
environment.
(c) The nature of the injury being a “semi permanent” scar. (d) The overall unprofessional manner of the scarification.
[49] Further public policy reasons for excluding the defence of consent
particular to the complainant B were:
(a) Mr Barker knowing her age.
(b) The fact that Mr Barker was aware that B had taken some nitrous
oxide gas.
(c) Sexual overtones.
(d) The nature of, the manner of and the placement of the cuts. (e) The overall unprofessional nature of the activity.
(f) The environment – the BDSM “dungeon”; B being chained; the wearing of leather clothes.
[50] Assessing the matter overall, the Judge considered that the factors
that he had identified outweighed any (limited) social
utility of the
scarification to A and B and also outweighed their right to personal
autonomy.
The parties’ submissions
[51] Mr Fournier, for Mr Barker, submitted that the Judge was wrong to
take into account individualised factors when deciding
whether to withdraw the
defence of consent and honest belief in consent, in the absence of a finding
that Mr Barker intended to cause
grievous bodily harm. In his submission,
Lee makes it clear that, where less than grievous bodily harm is
intended, there can only be “per se” or across the board
exceptions
to the general rule that consent is a defence. There is no justification, in
his submission, for such an exception in
the case of scarification.
[52] Ms Markham, for the Crown, accepted that there cannot be an across
the board exception for scarification but submitted that
the test in Lee
is the same for all levels of harm – see at [300] of Lee. In
her submission, individualised factors can be taken into account no matter what
the level of harm. In this case the peculiar
combination of factors, including
the age of the complainants, the sexual nature of the scarification and the
other factors identified
by the Judge, justified the removal of the
defence.
[53] In order to assess these submissions, I first discuss the law in New
Zealand on the defence of consent (which, as I use the
term in this judgment,
includes the defence of honest belief in consent). I then apply the law to this
case.
The law in New Zealand on the defence of consent
[54] The law on withdrawal of the defence of consent was considered in depth by a Full Court of this Court in Lee (see at [4] above). The Court’s judgment in Lee contained a survey of the case law and academic authorities up until that point. At a broad level of generality, the Court came to the view, endorsing the (minority) judgment of Lord Mustill in R v Brown [1994] 1 AC 212 (HL), that consent (and
honest belief in consent) is a defence to charges of the character before us,
except where there are good public policy reasons to
exclude it and those policy
reasons outweigh the social utility of the activity and the high value placed by
our legal system on
personal autonomy (see at [300] of Lee). I thus
accept Ms Markham’s submission that the same test applies to all levels of
intended harm.
[55] I, however, also accept Mr Fournier’s submission that the
Court in Lee drew a distinction in the operation of that test between
cases where no serious injury was intended and those where grievous bodily
harm
was intended or a perpetrator was reckless as to the infliction of grievous
bodily harm – see Lee at [296], [301] - [302], [305] – [307],
the summary of the law on consent at [311] – [317] and the
application
of the test to the facts at [335] – [336]. It is important to
stress that the test is intention based, not results based
– see at [291]
– [292] and [313] of Lee. The issue is the level of injury intended
to be caused and not the level of injury actually caused.
[56] In a case where no more than bodily injury was intended, the Court
in Lee held that consent would almost inevitably be a defence, apart from
cases of fighting (other than playfighting and organised bouts).
It accepted
that there may be other circumstances where consent would be withdrawn as a
defence but these would be rare and Judges
should be wary of creating exceptions
based on their own views of acceptable behaviour – see at [296] of
Lee. I accept Mr Fournier’s submission that it is implicit in
[296] that any exception where no more than mere bodily injury is
intended is
likely to be a “per se” or “across the board”
exception.
[57] In a case involving intent to cause grievous bodily harm, the Court in Lee considered that Judges could take into account more individualised factors in deciding whether consent should be withdrawn as a defence. At [301], the Court said that excluding consent for the intentional infliction of grievous bodily harm and recklessness as to grievous bodily harm can be justified on a similar basis to the justification for the common law rule as to maim - that is that the persons on whom grievous bodily harm is inflicted may become a charge on society.
[58] In addition, the Court referred to the considerations referred to by
Gonthier J in R v Jobidon [1991] 2 SCR 714, discussed at [233] –
[238] of Lee. Gonthier J had referred in Jobidon to the
possibility that, by permitting a person to consent to force inflicted by the
hand of another, in rare cases the latter may
find that he or she derives some
form of pleasure from the activity, especially if he or she is doing so on a
regular basis. Gonthier
J referred with approval to the following comments in
Fletcher Rethinking Criminal Law (1978) at 770 – 1:
[T]he self-destructive individual who induces another person to kill or to
mutilate him implicates the latter in the violation of
a significant social
taboo. The person carrying out the killing or the mutilation crosses the
threshold into a realm of conduct
that, the second time, might be more easily
carried out. And the second time, it might not be particularly significant
whether
the victim consents or not. Similarly, if someone is encouraged to
inflict a sado-masochistic beating on a consenting victim, the
experience of
inflicting the beating might loosen the actor’s inhibitions against sadism
in general.
[59] Finally, the Court considered that, as people, absent mental
impairment, illness or duress, do not generally consent
to the infliction of
grievous bodily harm, there will also always be concerns about the reality of
any supposed consent and whether
it is truly voluntary. There may similarly be
questions as to the rationality of any belief in consent – see also at
[301]
of Lee.
[60] At [302] of Lee, the Court noted that, in deciding whether
there are good public policy reasons to exclude the defence of consent in cases
of intention
to cause grievous bodily harm or recklessness, the level of
seriousness of the intended injury still, however, needs to be considered,
outside the recognised exceptions, alongside the right to personal autonomy,
the social utility of the activity and any
other relevant factors that
may diminish the concerns set out at [301] of Lee.
[61] If consent is not withdrawn as a defence, the Court in Lee made it clear that it is very important for a jury or fact finder to assess exactly what was consented to. Consent will only be operative if the impugned acts come within the scope of the activity consented to – see at [308] of Lee. This will, in most cases, limit the ambit of the defence to minor harm and reasonable risks, as people are unlikely to consent to the infliction of serious harm or to unreasonable risks. Consent is only a defence if what was done does not exceed what was consented to or what a perpetrator
honestly believed was consented to. It will thus be necessary to identify
either the exact level of injury the victim consented to
have perpetrated on him
or her or, more commonly, the level of risk of injury consented to. The scope
of any implied (as against
express) consent will be determined by reference to
largely objective criteria.
[62] Because the judgment in Lee was a necessarily lengthy one on
matters of real difficulty and importance in the criminal law, the Court
provided a summary of the
current position in New Zealand on consent to
that point: at [311] - [318]. I reproduce that here:
Summary of the current position in New Zealand on consent
[311] Under the 1961 [Crimes] Act, consent is preserved as a defence by s
20(1). We reiterate that, when we mention consent in this judgment, it
encompasses honest belief in consent.
[312] The question of consent falls to be considered in accordance with
the common law rules, apart from ss 61 and 61A
dealing with surgical
operations and situations covered by s 63, which provides that no person can
consent to the (intentional)
infliction of death upon him or herself including
(probably) murder as defined in s 167(b), (c) and (d).
[313] The test in New Zealand at common law is not a results based test.
If injury is not intended and there is no reckless disregard
for the safety of
others, then consent is a complete defence to any charge of assault, provided
what occurred comes within the scope
of the consent.
[314] Where injury was intended or where the perpetrator was reckless,
consent is still a complete defence, provided what occurred
comes within the
scope of the consent, except in the situations set out below.
[315] Apart from sparring matches or playfights and organised matches
conducted with a referee and according to established rules,
consent is not a
defence in relation to fighting. Those involved in sparring matches and
playfights must not be acting in reckless
disregard for the safety of others and
must not intend to cause bodily injury for consent to be operative.
[316] Where grievous bodily harm is intended, public policy factors may
require the Judge to withdraw the defence of consent from
the jury. The same
applies where a perpetrator acts in reckless disregard for the safety of others.
When deciding whether consent
should be withdrawn as a defence on public
policy grounds in such situations the Judge should take into account
the right
to personal autonomy, the social utility (or otherwise) of the
activity, the level of seriousness of the injury intended or risked,
the level
of risk of such injury, the rationality of any consent or belief in consent, and
any other relevant factors in the particular
case.
[317] Under these principles, consent must be left to the jury if there is an evidential basis for it, except where s 63 applies, in cases of fighting, and in cases where grievous bodily harm is intended or where the perpetrator acts
in reckless disregard for the safety of others and the Judge withdraws the
defence on public policy grounds. Any withdrawal of the
defence will usually
be a conditional withdrawal as it will be for the jury to decide whether the
Crown has proved intent to inflict
grievous bodily harm or that the perpetrator
has acted in reckless disregard for the safety of others. In any particular
case, there
may also be other factual pre-requisites to the withdrawal of
consent as a defence which may need to be decided by the jury.
[318] Where consent is left to the jury, it will be for the jury to decide
whether the Crown has proved both lack of consent
(either explicit or
implied) and lack of honest belief in consent or whether the Crown has proved
that what happened does not
come within the scope of any consent and that the
perpetrator did not honestly believe that it did...
[63] The only manner in which the summary does not accord with the test
as set out in Lee is that, at [315], it does not leave open the
possibility that there may be other rare “per se” or across the
board exceptions,
as recognised could be the case at [296] of Lee –
see at [56] above.
[64] It is, however, clear from the summary set out above at [62], that
Lee does not specifically deal with the situation of intermediate
categories of intended harm that may lie between mere bodily injury
and grievous
bodily harm. This may reflect the structure of the Crimes Act with regard to
assaults and injuries to the person and
intent. For example, ss 188 and 198 of
the Crimes Act distinguish only between intent to injure and intent to cause
grievous bodily
harm (remembering that the Lee test is an intent and not
results based test – see at [55] above).
[65] Contrary to O’Regan J’s view, I do not consider,
however, that a court should be bound by the way the Crimes
Act defines offences
or the actual charges laid, as that is often a matter of prosecutorial
discretion (as pointed out in Lee at [293]). If intent to cause injury
that is greater than mere bodily harm is proved to the requisite standard, that
can be taken
into account in assessing whether public policy reasons require the
removal of the defence of consent, whatever the actual charge.
[66] The reality is that there must be a sliding scale in applying the test set out at [300] of Lee, which, as discussed at [54] above, applies to all levels of intended harm. This means that the more serious the level of intended harm, the more likely that public policy factors will serve to exclude consent. The scope for taking into account individualised factors, such as those outlined at [301] of Lee, will increase as
the intended level of harm increases, although, in applying the test, Judges
should heed the warning (at [296] of Lee) not to let personal views of
acceptable behaviour intrude and to remember the high value to be placed on
personal autonomy –
see at [302] of Lee.
[67] I remark, however, that the division of opinion in this appeal shows
that trial Judges should be very wary of ever withdrawing
the defence of consent
other than in cases where the particular exceptions already explicitly
recognised in Lee clearly apply. Indeed, even in cases of intention to
cause grievous bodily harm, Judges may be advised not to withdraw the defence
unless there were truly exceptional circumstances. The concentration should
instead usually be on the scope of any consent and
whether or not it was
exceeded – see at [61] above.
Application to this case
[68] I now turn to the application of these principles to this case. I
discuss this under the following headings:
(a) Should the defence of consent apply where mere scarification is
involved?
(b) Should the defence apply to scarification in a sexual
context?
(c) What is the position if more than mere bodily injury is
intended?
(d) Did the factors identified by the Judge justify removing the
defence?
Should the defence of consent apply where mere scarification is
involved?
[69] It has always been accepted by Mr Barker (and is a necessary element for the convictions) that he intended to injure both complainants. Assuming that he did not intend to inflict a higher level of harm than mere bodily injury, the issue is whether this case comes within the rare category of further exceptions set out at [296] of Lee,
which, as I say at [56], will almost inevitably be “across the
board” or “per se”
exceptions.
[70] It cannot be open to this Court to introduce into our law a general
prohibition against scarification and its related activities
of piercing,
branding and tattooing. The Crown does not suggest that we should.
Scarification can serve a variety of functions
in different cultures. For
instance, in some cultures, it may be used as a rite of passage in adolescence
or to mark particular
emotional states. It can have deep spiritual
significance. Scarification may also operate as an “identifier” in
some
instances. Many young people today adopt facial or body ornamentation,
sometimes associated with scarring. The short point for
present purposes is
that in many societies, practices associated with, or similar to,
scarification are an exercise of personal
or tribal autonomy and have social
utility.
[71] The approach taken by the trial Judge in this case rested heavily
upon the age of the complainants, their vulnerability and
their exploitation by
Mr Barker. But by themselves, those factors are not, on the current
authorities, such as to enable a trial
Judge to displace the defence of
consent if only mere scarification had been involved. The position may
have been different
if the children were younger – see Burrell v Hanmer
[1967] Crim LR 169. I note, however that some jurisdictions have legislated
in this area. For instance, in the United Kingdom, the Tattooing of Minors
Act
1969 makes it an offence to tattoo anyone under the age of 18 years regardless
of consent (subject to a defence of reasonable
belief that the person was
older). There is also an explicit exception when the tattoo is performed for
medical reasons.
Should the defence apply with regard to scarification in a sexual
context?
[72] In this case, we are not dealing with mere scarification. What occurred in this case has to be seen in context. I accept the Crown’s submission that it is plain that the trial Judge rejected Mr Barker’s evidence that the scarifications were not sexually motivated, finding that the “general sexual/BDSM overtones” of the activity constituted a relevant factor in the public policy assessment with regard to both complainants – see at [48] and [49] above.
[73] The Crimes Act prohibits all sexual conduct (including indecent
acts) with children under 16 years: s 134 of the Crimes Act.
Consent, apart
from in very limited circumstances, is not a defence: s 134A of the Crimes Act.
By analogy with the Crimes Act
provisions on sexual conduct with those under 16,
I consider that scarification when done in a sexual context (but not otherwise)
on a child who is under 16 should be, along with fighting, another of the rare
exceptions referred to at [296] of Lee where consent is not a defence
even if no more than mere bodily injury is intended.
[74] The Crimes Act retains the common law defence of consent through s
20. The common law is not by nature static. Where it
is retained in a statutory
context, it must develop consistently with that context. In that regard, the
public would no doubt think
it very odd if a girl under 16 could not consent to
her 15 year old boyfriend touching her breast (subject to R v Armstrong
[2007] NZCA 221) but could consent to being disfigured by a 50 year
old man in the course of a sexual, sado-masochistic and degrading
ritual.
[75] In this case A was under 16 and the trial Judge’s finding was
that Mr Barker knew this (see at [41] above). It follows
that the Judge was
correct to withdraw the defence of consent with regard to A, even if no more
than mere bodily injury was intended.
[76] The issue with regard to B is whether the “per se”
exception I have identified above should also apply to those
who are not under
16 but who are still regarded as children under UNCROC. That Convention defines
a child as someone under the age
of 18, and B was 17 at the time of the
offending.
[77] It is true that UNCROC is protective of children. The Convention also, however, treats children as autonomous beings and accords to them their (age- appropriate) right to be heard and to make decisions about their lives. Our Crimes Act assumes that those over 16 are able to consent to sexual activity. Given this, it would be inappropriate in my view to extend the exception identified at [73] beyond those who are under 16. Further, such an extension to include those legally able to consent to sexual activity would in my view be inconsistent with the endorsement in
Lee of Lord Mustill’s test in Brown. Lord
Mustill’s test was formulated in the BDSM context where mere bodily injury
was intended and caused by middle aged perpetrators
on young persons, albeit not
as young as B.
[78] It follows that, if no more than mere bodily injury is intended,
then, for those who are over 16, there is no “per
se” exception for
scarification, even if it occurs in a sexual context. Therefore, if no more
than mere bodily injury was
intended with regard to B, the Judge would not have
been correct to withdraw the defence of consent, as she was over 16 at the time
of the offending.
What is the position if more than mere bodily injury is
intended?
[79] The issue relating to B is whether the level of injury Mr Barker
intended to cause justified the trial Judge using individualised
factors
(usually reserved for cases of intention to cause grievous bodily harm or
recklessness as to such harm – see at [57]
- [59] above) to justify the
removal of the defence of consent.
[80] The Judge did not specifically identify the level of harm that was
intended with regard to B, although one of the factors
he took into account
withdrawing the defence in B’s case included the nature, manner and
placement of the cuts – see
at [49] above. The Judge rejected as
nonsensical Mr Barker’s assertion that someone other than he had cut B
– see at
[41] above. On Mr Barker’s evidence, he intended to give B
a partial corset cut, which was to last between three and 18 months
if looked
after – see at [30] above.
[81] In my view, this intent reaches a level that is well above intent to cause mere bodily injury, even though I am constrained by the Judge’s finding (see at [44] - [45] above) that it did not reach the threshold of intent to cause grievous bodily harm. Given this, I consider that, in terms of the discussion above at [66], the trial Judge was justified in using individualised factors in assessing the withdrawal of consent with regard to B.
Did the factors identified by the Judge justify removing the
defence?
[82] The next question is whether the particular individualised
public policy factors in B’s case outweigh the
social utility of the
activity and the respect the law ought to accord to B’s right to personal
autonomy.
[83] The main factor influencing the Judge was B’s age. Although
I have held that this does not result in an automatic
exclusion of consent, even
in a sexual context, I consider that this was a legitimate factor to take into
account, given that B was
still a child under UNCROC. It is implicit
in Lee that any particular vulnerability of the person consenting
(including age) can be taken into account in assessing the rationality
of any
consent – see at [301] of Lee. Further, in this case there was a
large age disparity between Mr Barker and B. The Judge also took into account
the fact that
B had taken nitrous oxide and that Mr Barker was aware of this.
This was a legitimate factor to take into account, given that drug
taking may
also affect the rationality of any consent.
[84] The Judge also took into account the sexual overtones and the BDSM
environment. While on their own these factors would not
have justified the
removal of consent for a person able to consent to sexual activity, I do not
consider it illegitimate for them
to be taken into account as factors that, in
combination with other factors, may justify the removal of consent, particularly
given
the age disparity between Mr Barker and B.
[85] In addition, the Judge took into account that Mr Barker carried out the scarification in an “unprofessional” manner. I consider that this was a legitimate factor to take into account. Even on Mr Barker’s version of events, for both A and B there was limited attention to hygiene and an absence of after-care. The United Kingdom Law Commission’s Consultation Paper No 139 Consent in the Criminal Law (1995) notes that scarification carries “considerable risks if not carried out by skilled people in proper safe and hygienic conditions” (at [9.1)). This was also the evidence of the parlour operator at trial – see at [36] above. As the Crown noted, the risks would include transmission of HIV, Hepatitis B and other infections, nerve damage as well as unwanted and permanent disfigurement. I accept the Crown’s
submission that the fact that B’s scarification took place when she was
manacled and in a standing position plainly increased
the risk of more serious
injury (for example in the event of a struggle). This was consistent with the
evidence given by the parlour
operator at trial – see at [36]
above.
[86] Further, the Judge took into account the nature, the manner and the
placement of the cuts. I consider that he was correct
to do so. B’s
scars were devoid of artistic merit and disfiguring. In addition, they were
administered in a degrading manner
with B being chained and in leather
underwear, as the Judge identified. The position contributed to the disfiguring
nature of the
scars actually inflicted and the less than professional job done.
This was noted by the industry witness (see at [38] above) and
even by Mr Barker
himself (see at [31] above).
[87] The Judge found that the factors he had identified with
regard to B outweighed the social utility (if any) of
the scarification to B
and also outweighed her right to personal autonomy – see at [53] above. I
consider that he was entitled
to come to that view, given the particular
combination of factors that he had identified. I accept the Crown submission
that this
was an exploitative, sexualised activity with a real risk of permanent
disfigurement and involving a vulnerable teenage girl. I
also accept the Crown
submission that, while withdrawing consent might be seen as intrusive and
paternalistic in respect of an adult,
it may not be so for a young person aged
under 18. It is also relevant that the exploitative and tawdry behaviour in
which Mr Barker
had indulged with regard to B would doubtless be abhorrent to
the vast majority of New Zealand citizens, given B’s age and
the age
disparity between her and Mr Barker.
[88] I consider, therefore, that it was open to the Judge to remove the defence of consent (and the related honest belief in consent) with regard to B. This conclusion in B’s case, however, arises from the particular combination of features that were present and, in particular, the nature of the harm intended, the inadequacy of sanitary and after care precautions, the degrading manner in which the acts occurred, B’s consumption of nitrous oxide, her youth, the age disparity between her and Mr Barker and the whole BDSM context. Whether the Judge would have been justified in removing consent had B been older is not a question that arises in this
appeal and I make no comment on it, apart from saying that Judges should not
lightly remove consent as a defence for adults and that
they should be wary of
imposing their own views of morality on those who are adult. The issue in such
cases will usually be the
scope of consent and whether or not it was exceeded
– see at [61] above.
[89] For completeness, I note that, had I not decided there was an across
the board exception with regard to A, I would have upheld
the Judge’s
withdrawal of the defence of consent with regard to A, given the particular
combination of factors in her case.
Although there were fewer degrading
features present in A’s case (as regards the actual scarification process)
than in the
case of B and A’s scars were arguably (see at [37] above) less
disfiguring than B’s, A was younger than B with a particular
vulnerability
(self harming behaviour), which was known to Mr Barker.
Result
[90] I would have dismissed the appeal in relation to both
complainants.
[91] In accordance with the view of the majority, however, the appeal is
allowed, the convictions are set aside and a retrial
is ordered.
[92] Order prohibiting publication of the judgment and any part of the
proceedings (including the result) in news media
or on internet or
other publicly available database until final disposition of re-trial.
Publication in Law Report or Law
Digest permitted.
HAMMOND J
Introduction
[93] I am grateful to Glazebrook J for setting out the background to this difficult case and the submissions of the parties.
[94] I take a different view from the trial Judge and Glazebrook J as to
the proper disposition of the case. I would allow the
appeal on the basis that
the defence of consent should not have been withdrawn on public policy grounds
in relation to the two counts
before us. However, as I will explain in this
judgment, the trial Judge did not deal with the actual defence of consent on
those
two counts. Accordingly, on my view of the course matters should have
taken, the trial has misfired. The result is that the convictions
entered
should be set aside and a new trial ordered on those two counts. Whether the
Crown chooses to pursue a retrial is for it
to determine.
[95] I will set out my reasoning under four heads: the course followed at
trial; whether there is a defence of consent to the
relevant charges in this
case and the terms of such a defence; whether that defence of consent should
nevertheless have been withdrawn
in this case; and the appropriate disposition
of the appeal.
The course followed at trial
[96] At trial, the defence accepted that the elements of the injuring
with intent to injure charge (s 189(2) of the Crimes Act
1961) and the wounding
with intent to injure charge (s 188(2) of the Crimes Act) relating to the
complainants A and B respectively
were established. The sole defence on both
counts, as recorded by the Judge in his reasons for verdict, was as follows (at
[35]):
The defence submits that the Crown has not proven beyond reasonable doubt
that either of the two complainants did not consent nor
has the Crown proven
beyond reasonable doubt that the accused did not have an honest belief that each
was consenting.
[97] The Judge then recorded the Crown as submitting that (at
[36]):
• I should withdraw the defence of consent to [the two counts];
or
and
[98] The way the Judge then proceeded (at [37]-[49]) in
his reasons for verdict was to consider whether the defence of consent
should be
withdrawn on the two counts, following R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA).
He arrived at an affirmative answer to that question.
[99] Because of the way the issue of consent had been put to the Court,
and the Judge’s decision to withdraw the defence,
the Judge did not
consider the terms in which any applicable defence of consent should be put, nor
did he endeavour to apply that
defence as framed to the facts. The danger in
taking that course was that if the defence of consent was later considered to be
wrongly
withdrawn, there would be an “incomplete” trial verdict, and
reasons therefor. We do not know how the Judge thought the defence of
consent should be framed in a case such as this. His reasons for verdict merely
reflect the view the Crown
took of that issue.
[100] When the Judge came to sentence Mr Barker, the Crown argued that
although it had been withdrawn as a defence, lack of consent
would be an
aggravating factor at sentencing if B had not consented or there was no honest
belief in consent. It was in that context
that it was urged on the Judge that B
had not “consented”. The Judge made the somewhat awkward
observation, couched
in double negatives, that “the evidence does not make
me sure that she did not consent, it being a matter that has to be established
beyond reasonable doubt by the Crown that she did not consent” (at [9] of
the sentencing notes). This is an oblique remark
in a sentencing context,
rather than a clear articulation of the correct test for consent.
The defence of consent
[101] The notion of consent as it operates in the law might be thought to be relatively unproblematic. This is however a very difficult area. For the concept of consent masks a number of problems: for example, what is the function of consent (is it truly a “defence”?); what are the conditions for giving a valid consent; what capacity is required to consent; what are the outer justificatory limits of consent; and when can consent be withdrawn.
[102] One category of cases, which can be put to one side for present purposes, are those where lack of consent is an element of the statutory offence. In R v B CA17/94
7 July 1994, this Court held that withdrawing the defence of consent in a
case where lack of consent is an element of the offence
is to effectively direct
a jury to convict, “a course very rarely if ever permissible” (at
4).
[103] A second and much more common category of cases is where consent is
advanced purely as a defence. Sometimes a provision in
the Crimes Act expressly
provides for such a defence. Where express provision is not made, the question
then becomes whether there
is a common law defence of consent preserved by s 20:
R v Nazif [1987] 2 NZLR 122 (CA).
[104] As a very general proposition, with respect to offences of assault,
consent is normally a defence. That defence may take
the form of actual
consent. This Court has routinely held that consent in that sense must be
“true, real or genuine consent”:
R v S (1992) 9 CRNZ 490 at
495 (HC). It may also arise out of apprehended consent, where the person
carrying out the impugned acts has done so with an
honest belief based on
reasonable grounds that there was consent (R v Lee at [308]).
[105] A caution was added by this Court in R v Lee, in the context
of grievous bodily harm, that (at [301]):
[A]s people, absent mental impairment or illness or duress, do not generally
consent to the infliction of harm of such magnitude,
there will also always be
concerns about the reality of any supposed consent and whether it is truly
voluntary.
[106] Further, this Court emphasised in R v Lee that it is extremely
important to assess exactly what was consented to (at [308]):
Consent will only be operative if the impugned acts come within the scope of
the activity consented to. This will, in most cases,
limit the ambit of the
defence to minor harm and reasonable risks, as people are unlikely to
consent to the infliction
of serious harm or to unreasonable risks.
[107] More problematically, this Court also suggested – but without finally deciding – that at least in some cases there might be a requirement for informed consent (at [309]):
Where ... there is a known information imbalance about the risks involved
between those giving and seeking consent, it does not seem
unreasonable to
require the person seeking consent to correct that imbalance. This requirement
may, however, be limited to
cases where the risk is major because of
the various serious consequences if it does eventuate (such as unprotected sex
and
HIV) .
[108] For myself, I have distinct difficulty with the notion of informed consent in the criminal law. That concept emerged as the common law world struggled with rejecting physician paternalism in favour of a patient-centred approach to the disclosure of medical options and risks. See generally Beyleveld and Brownsword Consent in the Law (2007) at 170-183. In Canterbury v Spence (1972) 464 F 2d
772, which was probably the seminal decision in this field, the Court of Appeals of the District of Columbia observed that “[t]rue consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each” (at 780). That lead was followed by the Supreme Court of Canada in Reibl v Hughes [1980] 2
SCR 880, and the High Court of Australia in Rogers v Whittaker (1992)
175 CLR
479. For a discussion of the doctrinal approach in the United States, see
Faden and Beauchamp A History and Theory of Informed Consent (1986).
Subsequently, some distancing from the early theorem emerged in the United
Kingdom. See for instance Sidaway v Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital [1985] UKHL 1; [1985] AC 871.
[109] Without going into the matter in unnecessary detail, and for the
purposes of this judgment only, the concern appears
to have become that
the doctrine of informed consent as it emerged in medical law is neither
entirely straightforward, nor
a “pure” articulation of what it is
for consent to be authentic. The public policy concern is increasingly with
what
might be termed the development of positive informational obligations and
responsibilities that themselves provide a context for
consent-based
transactions. In fairness to the Full Court in R v Lee, there is a
passing recognition of this problem (at [309]), but it was never squarely
addressed because it was not central to that
case.
[110] The difficulty is that recognition of what is or may be required does not lend itself at all well to a blanket judicial doctrine of informed consent in the criminal
law. The most effective solutions are likely that either something should be
banned outright by the creation of statutory prohibitions
(see for example, the
Tattooing of Minors Act 1969 (UK)), or there has to be a detailed regulatory
scheme.
[111] I consider that a full blown doctrine of informed consent in the
context of the criminal law would raise very significant
doctrinal and practical
difficulties. These are inappropriate in the criminal law. That was also the
view taken by the English Court
of Appeal (admittedly also without any real
articulation of the point) in R v Robinson [1999] QB 444 at 450, which
held bluntly that there is “no place for informed consent in the criminal
law”.
[112] In my view, trial judges have to know what the law is with a real
degree of particularity in directing juries, or for that
matter themselves, in
criminal trials. The preferable course is to stick firmly to this Court’s
formulation in R v Lee (at [318]), unless further guidance is
provided by the Supreme Court of New Zealand or Parliament:
Where consent is left to the jury, it will be for the jury to decide whether
the Crown has proved both lack of consent (either explicit
or implied) and lack
of honest belief in consent or whether the Crown has proved that what happened
does not come within the scope
of any consent and that the perpetrator did not
honestly believe that it did.
[113] In passing, it is worth noting that much of the trial Judge’s
concern in this case could have been dealt with –
not necessarily to Mr
Barker’s advantage – under the head of consent.
Withdrawal of the defence of consent
[114] There is no doubt that the law has, for a long time now, refused to allow consent as a defence in relation to particularly dangerous activities. It is unnecessary for me to go into these cases in any detail; this sort of problem is discussed in detail in R v Lee. But solely by way of an illustration for present purposes, the sort of things which the law has readily eschewed have been duelling, or even fencing with naked swords (see R v Barronet [1852] EngR 915; (1852) 118 ER 337; R v Orton (1878) 14 Cox CC
226). In these extremely egregious cases, it is the fact that the lives of the
participants are endangered which has been seen as going too far (see Matthew
J in R v Coney (1882) 8 QBD 534 at 544). The real difficulties arise
below that sort of level of harm.
[115] For the purposes of this case, the starting point in such cases is
the decision of the Full Court in R v Lee (at [300]) which stipulates
that the New Zealand approach is to be in accordance with Lord Mustill’s
(admittedly dissenting)
view in R v Brown [1994] 1 AC 212 (HL):
In our view, the rule (for all levels of intentional infliction of harm) is
rather that there is an ability to consent to the intentional
infliction of harm
short of death unless there are good public policy reasons to forbid it and
those policy reasons outweigh the
social utility of the activity and the value
placed by our legal system on personal autonomy. 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 ... 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 ... where the tendency has
been not to countenance too many limits on the availability of consent
as a
defence.
[116] In straightforward terms, the significance of adopting the minority
approach of Lord Mustill in R v Brown (as the Full Court did in R v
Lee) is that there is a presumption of an ability to consent to the
infliction of injury unless there are good reasons to the contrary.
As I
apprehend her judgment, Glazebrook J thinks there are such good reasons to the
contrary in this instance. I take a different
view. It is therefore
incumbent on me to explain why I think that public policy does not militate in
favour of withdrawing the
defence in this instance.
[117] 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”.
[118] It is convenient to deal with each of the complainants separately.
The case of A
[119] With respect to A, Glazebrook J would have an “across the board
exception” for scarification when done in a sexual
context on a child who
is under 16 based on an analogy with s 134 of the Crimes Act. In that context,
consent would not be a defence
even if mere bodily injury is
intended.
[120] To my mind, this is a form of judicial legislation in an area of the
law covered by a criminal code. Further, there is nothing
akin to s 134A, which
provides that consent is not a defence to sexual conduct (including
indecent acts) with children
under 16, in ss 188 or 189. There was no genital
touching in this case so the force of an analogy with s 134 pertaining to sexual
conduct and indecent acts is problematic.
[121] The central difficulty can be put shortly: to read something like s
134A into the ss 188 189 context is to do the very thing
Parliament has not
done. Effectively, the argument for this solution is to amend the substantive
criminal law of New Zealand, which
is beyond our writ.
The case of B
[122] Glazebrook J considers that the trial Judge was right to withdraw the
defence of consent in this case in relation to B.
This is because of the
combination of features that were present, including (in particular) the nature
of the harm intended, the
inadequacy of sanitary and after-care precautions, the
degrading manner in which the acts occurred, the youth of B, and the age
disparity
between her and Mr Barker.
[123] Perhaps the first point to be made here is that this necessarily
carves out an exception, the margins of which are not going
to be distinct.
Creating exceptions in an area like this will surely make for real difficulties
in other cases.
[124] This point shades into a second point: the application of the R v Lee formula.
[125] Body ornamentation of one form or another – including
scarification – appears to be remarkably commonplace
today, including
amongst young people. The reasons for resorting to these practices vary widely
amongst cultures and individuals.
[126] Undoubtedly, resort to these practices is seen in many instances as
having distinct social utility, for a variety of reasons.
The particular
practice may be a form of communication, it may be a form of ornamentation, or
it may be a cultural practice which
may go as far as rites of initiation or
personhood.
[127] Persons resorting to the practice of scarification are undoubtedly
exercising their right to personal autonomy in having recourse
to such
practices. As this Court said in R v Lee, personal autonomy is to be
accorded a “high value” (at [300]).
[128] Applying the R v Lee formula, and considering whether policy
reasons outweigh the value placed by our legal system on personal autonomy, the
question is
then whether the downstream consequences of this activity require
– it may have to be put that high – this Court to say that there
are things attached to the activity which militate in
favour of the abnegation
of personal choice.
[129] On any realistic assessment there are things to be genuinely
concerned about in this case: the likely duration of the wounds;
the health
risks attendant on the activity; and the particular circumstances in which these
acts were performed in the case of B.
But it is not to evade the R v Lee
formula to say that undertaking an exercise of this kind necessarily drives
one back to concerns about paternalism, in relation to
the application of that
formula. It is worth recalling what professional analysts, whether jurists,
philosophers or public policy
makers, generally raise as underlying concerns
about paternalism in this sort of exercise.
[130] The first such concern is an epistemic objection: is the authority making the determination better placed than the subject person to actually know what promotes their welfare? At any rate in pluralistic Western societies, this is complicated by a lack of consensus about precisely what “welfare” is. A second, and more practical, objection which is usually made under this head is that even if the deciding authority
“knows” about consumers or a particular person’s welfare,
it may realistically be effectively unable to discriminate
in its interventions,
so as to promote it. The problem here is that there are a wide range of
circumstances in which scarification
may be resorted to. Yet for criminal law
purposes in particular the law must be very clear. Are we to say that some
forms of scarification
(such as in this case) are not to be permitted, but that
inflicting a thousand cuts with a razorblade on a person of Polynesian descent
to achieve a distinct “cultural” outcome is to be permitted? A
third ethical objection is that even if the deciding
authority is able to
effectively discriminate in a way that promotes welfare, it ought not to. I
mention this third head in this
case not to rely on it, because the Full Court
in R v Lee has decided that, where appropriate, a Court can and should
interfere. However, I would have thought that the ethical paternalistic
objection must necessarily require that the case be a compellingly
clear one
before a court should interfere, and stop a particular practice. Much as I
dislike what occurred in this instance, I do
not think this principle is met
here.
Disposition
[131] Accordingly, I would allow the appeal on the basis that the
trial Judge wrongly withdrew the defence of consent
on public policy
grounds.
[132] The question remains as to how this case should now be disposed of. The Crown said that if the convictions were set aside it would not seek a retrial. One can well understand the various reasons that might have led to that submission. Although the issue of whether to pursue a retrial is a matter for the Crown, that should not deflect this Court from adopting what it conceives to be the correct course to follow in a given case. Here, in my view, that involves setting aside the convictions, on the basis that the Judge misdirected himself in law, and ordering a retrial.
O’REGAN J
[133] I have reached the conclusion that the Judge was in error
in excluding consent as a defence to the charges faced
by the appellant.
Because the facts in a legal context are clearly set out in the judgment of
Glazebrook J, I can set out my reasons
for that conclusion briefly.
[134] The law has been stated recently and comprehensively in R v
Lee, and our task is to apply it to the facts of this case. In Lee,
the Court decided that consent (or honest belief in consent) was a defence to
charges involving the infliction of bodily harm except
in cases where there were
good public policy reasons to exclude that defence, outweighing the high value
placed on personal autonomy
and the social utility of the activity in question:
Lee at [300]. When applying the common law defence of consent
(preserved by s 20 of the Crimes Act 1961) to the intentional infliction
of
bodily harm, the approach to be taken will differ, depending on the level of
harm which the perpetrator intended to inflict.
[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.
[138] In her judgment, Glazebrook J does not approach the test in Lee
by reference to the level intention in the offence as charged. Instead
Glazebrook J considers that the Court is not bound by the
way the Crimes Act
defines offences or the actual charges laid when determining whether the conduct
in issue falls on one or other
side of the divide identified in Lee: at
[65]. She says that if intent to cause injury that is greater than mere bodily
harm is proved to the requisite standard that
can be taken into account in
assessing whether public policy reasons require the removal of the defence of
consent. At [66], Glazebrook
J continues that there is a sliding scale
applying to the tests set out in Lee at [300]. The effect of that
sliding scale is that the more serious the level of intended harm, the more
likely that public policy
factors will serve to exclude consent.
[139] I do not agree with this approach. In my view, the references in Lee to the degrees of intended harm were to the levels of intention identified in Part 8 of the Crimes Act, namely intent to injure, intent to cause grievous bodily harm, reckless disregard for the safety of others, and common assault where no specific intent as to injury is required. This seems clear not only from general discussion at [289] – [310], which is framed around these levels of intention, but from specific comments that indicate that the intention relates that of the offence charged. For example, the Court stated that whether consent is unavailable on the basis of public policy (a decision to be made by the trial judge) will likely depend on a factual finding by the jury of whether the Crown proved that there was intent to inflict grievous bodily harm or the perpetrator was acting in reckless disregard for the safety of others: at [307]. It is hard to see why the jury would be asked to consider whether there was intent to inflict grievous bodily harm or whether the perpetrator was acting in reckless disregard for the safety of others where neither is an element of the offence charged. The Court also summarised the position at [317] (albeit not with complete accuracy: see Glazebrook J at [63]), stating that consent must be left to the jury, except in specified circumstances not relevant to the present case, “in cases where grievous bodily harm is intended or where the perpetrator acts in reckless disregard
for the safety of others and the judge withdraws the defence on
public policy grounds”.
[140] As the case falls on the “mere bodily injury” side of the
divide identified in Lee (and referred to at [135] above) the issue is
whether the circumstances of this case justify an exception to the rule that
consent
is an available defence where mere bodily injury is
intended.
Is an exception justified in relation to complainant
A?
[141] In relation to complainant A, Glazebrook J concluded that
scarification in a sexual context involving a child under 16 is
one of the rare
exceptions referred to in Lee at [296] where consent is not a defence
even where mere bodily injury is intended: at [73]. The logic of this is that
sexual offending
against a girl under the age of 16 is criminalised by s 134 and
consent is only a defence in the limited circumstances prescribed
by s 134A. I
can see the attraction in applying the blanket prohibition on sexual activity
with children under the age of 16
by analogy to scarification where there
is a sexual overtone, as Glazebrook J suggests.
[142] However, I have come to the conclusion that, where the legislature has defined the conduct in respect of which consent is not a defence (as it has in s 134A(2)) and an accused person has not been required to answer a charge under that section, there is no proper justification for applying the “no consent” approach by analogy. The appellant in this case had to answer a charge that he injured A with intent to injure and there was no allegation of indecency on his part. I do not consider it appropriate to introduce the element of indecency in the course of a trial when a ruling as to the question of whether consent is to be left to the jury (or, in this case, judge) is made. If the Crown had a case to sustain a conviction for indecent assault or another offence under s 134, the appellant should have been charged with that offence. (The appellant was charged with inducing A to do an indecent act on him, but this did not relate to the cutting incident and he was acquitted.) Like Hammond J, I consider that any extension of the ambit of conduct against young people for which consent is not a defence is for Parliament rather than the judiciary.
[143] I do not think that the generic exceptions described in Lee
(such as for fighting) were intended to apply to situations as specific as
that envisaged by Glazebrook J (scarification of a girl
under the age of 16 in a
sexualised context). In my view, the matters which persuaded the Judge in this
case to exclude consent
as a defence were more properly matters to bring to the
inquiry as to whether the Crown had excluded the defence of consent. The
exclusion of consent as a defence has meant that the trial has miscarried in
relation to A because the fact finder has not had to
address his or her mind to
an essential element requiring proof from the Crown (lack of consent or honest
belief in consent). In
those circumstances I agree with Hammond J that the
appropriate response is to quash the conviction and order a new trial so that
the matter can proceed again from scratch in circumstances where all of the
elements can be considered by the fact finder.
Is an exception justified in relation to complainant
B?
[144] I also come to a different conclusion from that of Glazebrook J in
relation to
B.
[145] Glazebrook J’s approach to the case involving B begins from her
conclusion as to the existence of a sliding scale (see
[138] above). She
applies that sliding scale at [81] where she concludes that, although bound by
the decision of the Judge that
there was no intent to cause grievous bodily
harm, she is able to find that the intent was to cause more than mere bodily
injury.
This leads to her conclusion that the Judge was justified in using
individualised factors in assessing the withdrawal of consent
in the particular
case. For the reasons explained above at [139], I do not accept this
approach.
[146] I would approach the position of B on the basis that, in terms of the Lee categorisation, it is a case of mere bodily injury. That is what the appellant was charged with and in my view it would be unfair to embark on an inquiry as to whether the appellant’s intention was to inflict some higher level of bodily injury. That would lead me to the conclusion, consistent with that reached by Glazebrook J at [78] of her judgment, that the analogy with s 134 would be unsustainable in relation to B because she is 17, and therefore over the age in respect of which
consent is a defence to indecent assault and other sex offences. (The
appellant was charged with indecently assaulting B by touching
her breasts but
was acquitted on that count.)
[147] I would also conclude that the individual factors did not justify the
exclusion of consent as a defence in the present case.
In my view the exclusion
of the defence on that basis would be more consistent with the majority decision
in Brown, which was rejected by this Court in Lee. 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]).
[148] As I said in relation to A, it appears to me that the factors which
both the trial Judge and Glazebrook J considered in support
of the decision to
exclude consent are important factors in determining whether there was
actual consent in this case.
Notwithstanding the Judge’s finding in
the sentencing context that the Crown had not proved the absence of consent, I
believe
that there has not been a proper consideration of whether there was a
true consent in this case to the level of harm which was intended
and inflicted
by the appellant on B. As this Court said in Lee at [308]:
...we note that it is very important in these cases for the jury [in this
case, the Judge] to assess exactly what was consented to.
Consent will only be
operative if the impugned acts come within the scope of the activity consented
to. This will, in most cases,
limit the ambit of the defence to minor harm and
reasonable risks, as people are unlikely to consent to the infliction of serious
harm or unreasonable risks. Consent is only a defence if what was done does not
exceed what was consented to or what a perpetrator
honestly believed was
consented to. It will thus be necessary to identify the exact level of injury
the victim consented to have
perpetrated on him or her or, more commonly, the
level of risk of injury consented to.
[149] Like Hammond J, I would order a retrial on this count as
well.
Result
[150] I would allow the appeal, quash the convictions and order a
retrial.
Solicitors:
Crown Law Office, Wellington
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