Wounding with intent to cause grievous bodily harm where the defendant is charged as a principal or as party in the alternative (Sections 66(1) and 188(1) Crimes Act 1961)

[Note: The following scenario rests on the factual assumption that there was a street brawl between on the one hand, Mr Smith, Mr Thomas and an unidentified third assailant and, on the other, Mr Jones. The Crown alleges Mr Jones’ eyes were gouged during the brawl, which caused partial loss of his vision. Mr Jones was also punched and kicked during the brawl. The Crown argues that both Mr Smith and Mr Thomas were present when Mr Jones’ eyes were gouged. It alleges that Mr Smith gouged Mr Jones’ eyes or, alternatively, Mr Thomas gouged Mr Jones’ eyes while Mr Smith physically assisted or encouraged him to do so. The defence’s case is that while Mr Smith and Mr Thomas punched and kicked Mr Jones during the brawl, it was the unidentified third assailant who gouged Mr Jones’ eyes and caused his partial loss of vision. Mr Smith and Mr Thomas are being tried together. This question trail addresses only the position of Mr Smith. A separate equivalent question trail will be necessary for Mr Thomas.]

Charge 1: Wounding with intent to cause grievous bodily harm under sections 66(1) and 188(1) of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that either Mr Smith or Mr Thomas kicked and/or punched Mr Jones and/or gouged Mr Jones’ eyes on 30 June 2019?
	If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that either Mr Smith or Mr Thomas caused Mr Jones’ partial loss of vision or contributed significantly to his partial loss of vision?
	[Note: It is not necessary for the defendants’ conduct to be the sole cause of the harm alleged – all that is needed is proof that the defendants’ conduct contributed significantly to the harm. In some cases, however, there will be no dispute as to causation. If causation is not at issue, this question should not be included: see Hudson v R [2013] NZCA.] If no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that Mr Smith took part in gouging Mr Jones’ eyes in one or more of the following ways: (a) By gouging Mr Jones’ eyes? (b) By intentionally physically assisting Mr Thomas to gouge Mr Jones’ eyes? (c) By intentionally encouraging Mr Thomas to gouge Mr Jones’ eyes, by saying “give it to him” or words to that effect?
	If your answers to ALL of (a), (b) and (c) are no, find Mr Smith not guilty. If each one of you answers yes to one or more of (a), (b) and (c), go to question four.
4.	Are you sure that when Mr Smith took part in gouging Mr Jones’ eyes, he either: (a) intended to cause grievous bodily harm to Mr Jones; or (b) when assisting or encouraging Mr Thomas to gouge Mr Jones’ eyes, Mr Smith did so knowing that: i. Mr Thomas was going to cause grievous bodily harm to Mr Jones; and ii. Mr Thomas intended to cause grievous bodily harm to Mr Jones.
	“Grievous bodily harm” is really serious harm interfering with health or human function. If your answers to BOTH (a) and (b) are no, find Mr Smith not guilty. If each one of you answers yes to one or both of (a) and (b), find Mr Smith guilty.