CHAPTER 1: FOUNDATIONS

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1 Table of Contents CHAPTER 1: FOUNDATIONS 5 THREE JUSTIFICATIONS FOR CRIMINALISATION: 5 ELEMENTS OF GUILT 5 CRIMINAL RESPONSIBILITY OF CHILDREN 6 CORPORATIONS 6 THE AIMS OF PUNISHMENT 6 DOUBLE JEOPARDY 7 ABUSE OF PROCESS 7 PERJURY 7 BURDENS OF PROOF 8 INSANITY AS A DEFENCE 8 APPEALS IN AUSTRALIA 9 CHAPTER 2: ASSAULT AND RELATED OFFENCES 10 CONTACT: NO INJURY 10 CONTACT: SOME INJURY 10 CONTACT: SERIOUS INJURY 10 COMMON ASSAULT 11 THREAT 11 BATTERY 12 ASSAULT CASES 13 AGGRAVATED ASSAULT: ACCOMPANIED BY PARTICULAR INTENTION 16 ASSAULT WITH INTENT TO KILL (ATTEMPTED MURDER) CRIMES ACT 1900 (NSW) SS POISONING CRIMES ACT 1900 (NSW) SS 39, 41, 41A 17 AGGRAVATED ASSAULT: COMMITTED ON PARTICULAR CLASS OF PERSONS 18 AGGRAVATED ASSAULT: RESULTING IN PARTICULAR KIND OF HARM 19 ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMES ACT 1900 (NSW) S WOUNDING OR INFLICTING GBH CRIMES ACT 1900 (NSW) SS 33, 35, DOMESTIC VIOLENCE: PARTNERS AND CHILDREN 20 STALKING 20 SEXUALLY TRANSMITTED INFECTIONS 21 CONSENT 21 AFFRAY 22 FALSE IMPRISONMENT: KIDNAPPING 23 CHAPTER 4: MURDER 25 ACT AND CAUSATION 25 INTERVENING ACTS: BREAKING CAUSATION 26 MALICE 27 MALICE AFORETHOUGHT 27 CONSTRUCTIVE MALICE 27 CONTEMPORANEITY 28 LAWFUL HOMICIDE 28 CHAPTER 5: VOLUNTARY MANSLAUGHTER 29 VOLUNTARY MANSLAUGHTER 29 PARTIAL DEFENCES 29 INFANTICIDE 29 SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND 30 EXCESSIVE SELF-DEFENCE 31 1

2 PROVOCATION - PARKER V R [1963] 31 CHAPTER 6: INVOLUNTARY MANSLAUGHTER 35 UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER 35 NEGLIGENT MANSLAUGHTER 36 CULPABLE DRIVING CAUSING DEATH 37 INDUSTRIAL MANSLAUGHTER 38 LECTURE: WEEK 2 [MURDER] 39 HOMICIDE 39 OMISSION 39 MURDER OR MANSLAUGHTER TEST 40 CAUSATION AND NOVUS ACTUS INTERVENIENS 40 TAKE YOUR VICTIM AS YOU SEE THEM 40 OPERATING CAUSE OF DEATH 41 PROSECUTING DOCTORS 41 TRANSFERRED MALICE 42 RECKLESS INDIFFERENCE TO HUMAN LIFE 42 CHAPTER 12: COMPLETE DEFENCES 43 SELF-DEFENCE: CRIMES ACT 1900 (NSW) SS REQUIREMENTS FOR SELF-DEFENCE: 43 NECESSITY: CRIMINAL CODE ACT 1995 (CTH) S THE CONDITIONS NEEDED TO SATISFY NECESSITY 49 DURESS 50 THE CONDITIONS NEEDED TO SATISFY DURESS 51 BATTERED WOMAN SYNDROME 51 NECESSITY AND DURESS: CRITICAL COMMENT 52 THE POSITION OF MARRIED WOMEN: EWART V FOX [1954] 52 INTOXICATION - DETERMINING WHETHER INTENT WAS PRESENT 53 CHAPTER 14: MENTAL IMPAIRMENT AND RELATED DEFENCES 54 M NAGHTEN S CASE (1843) 54 QUESTION OF LAW RESERVED (NO 1 OF 1997) - FULL COURT OF THE SUPREME COURT OF SA 56 SCOPE OF MENTAL IMPAIRMENT DEFENCE 56 COMMONWEALTH CRIMINAL CODE ACT MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW) - NGMI 58 MENTAL HEALTH ACT 2007 (NSW) 58 BURDEN OF PROOF 58 MENTAL HEALTH (CRIMINAL PROCEDURE) ACT UNFITNESS TO STAND TRIAL - MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW) PT PREVENTATIVE DETENTION 59 CHAPTER 3: SEXUAL OFFENCES 60 CRIMES ACT 1900 (NSW) 60 ACTUS REUS FOR SEXUAL ASSAULT 66 MENS REA FOR SEXUAL ASSAULT 66 RECKLESSNESS REQUIREMENTS 66 SEXUAL ASSAULT FLOW CHART 67 ACTUS REUS 67 MENS REA 67 INDECENT ASSAULT REQUIREMENTS 61L 67 2

3 RAPE BY DECEPTION CRIMES ACT 1900 (NSW) S 61HA(5) 68 SODOMY, BESTIALITY, INCEST, PROSTITUTION 68 STALKING & INTIMIDATION 69 REQUIREMENTS FOR STALKING 69 REQUIREMENTS FOR INTIMIDATION 69 CHAPTER 7: PROPERTY OFFENCES (NSW) 72 LARCENY 72 ELEMENTS OF LARCENY ILICH V R 72 STATUTORY PROVISIONS REGARDING LARCENY CRIMES ACT 1900 (NSW) 72 ACTUS REUS LARCENY 73 MENS REA LARCENY 77 FRAUD CRIMES ACT 1900 (NSW) S 192E ALTERNATIVE VERDICT TO LARCENY 79 ELEMENTS OF FRAUD 81 ACTUS REUS FRAUD 82 MENS REA FRAUD 83 ROBBERY, BURGLARY, BLACKMAIL, RECEIVING 84 BLACKMAIL 84 BURGLARY / HOUSEBREAKING GOVERNED BY SS OF THE CRIMES ACT RECEIVING 85 CHAPTER 11: COMPLICITY 86 PRINCIPAL IN THE FIRST DEGREE 86 ACTUAL PERPETRATOR 86 JOINT CRIMINAL ENTERPRISES [ALL PARTIES ARE CHARGED AS PRINCIPAL IN THE FIRST DEGREE] 86 DOCTRINE OF COMMON PURPOSE PART OF J.C.E. 87 WITHDRAWAL FROM A JOINT CRIMINAL ENTERPRISE R V ROOK [1993] 87 INNOCENT AGENT [THE CONTROLLER IS CONVICTED AS PRINCIPAL IN THE FIRST DEGREE] 88 PRINCIPAL IN THE SECOND DEGREE 89 CONSPIRACY 92 ATTEMPT 93 INCITEMENT 93 ***EVERY CRUCIAL CASE*** 94 R V HALLETT [1969] SASR {NOVUS ACTUS INTERVENIENS - CAUSATION} 94 R V CRABBE [1985] 156 CLR 464; 58 ALR {FORESEEABILITY - WILFULL BLINDNESS - RECKLESS INDIFFERENCE} 96 ROYALL V R [1991] 172 CLR 378; 100 ALR {CAUSATION} 98 R V BLAUE [1975] 1 WLR {NOVUS ACTUS INTERVENIENS - TAKE YOUR VICTIM AS YOU SEE THEM} 99 R V SMITH [1959] 2 QB {MURDER - CAUSATION - OPERATING CAUSE} 100 3

4 FAGAN V METROPOLITAN COMMISSIONER [1969] 1 QB {BATTERY - ASSAULT - CONTEMPORANEITY - CONTINUOUS ACT} 101 EVANS & GARDINER (NO 2) [1976] 101 {NOVUS ACTUS INTERVENIENS} 101 R V RYAN AND WALKER [1966] VR {CONSTRUCTIVE MALICE / MURDER - FURTHERANCE OF THE COMMISSION OF A FELONY} 102 R V BUTCHER [1986] VR {MURDER - HOMICIDE BY UNLAWFUL ACT} 102 R V CORNELISSEN [2004] NSWCCA {JOINT ENTERPRISE - MANSLAUGHTER - UNLAWFUL AND DANGEROUS ACT} 103 NYDAM V R [1977] VR {MANSLAUGHTER - CRIMINAL NEGLIGENCE} 103 R V PULLMAN [1991] 25 NSWLR 89; 58 A CRIM R {INVOLUNTARY MANSLAUGHTER - UNLAWFUL AND DANGEROUS ACT} 104 R V LAVENDER [2005] 104 {INVOLUNTARY MANSLAUGHTER - CRIMINAL NEGLIGENCE} 104 WILSON V R [1992] HCA {INVOLUNTARY MANSLAUGHTER - CRIMINAL NEGLIGENCE} 104 ***CRIMINAL PROCEDURE NOTES*** 105 CHAPTERS 1 & 2: CRIMINAL TRIAL & ARREST 105 JURY 105 ARREST 106 WARRANTS 109 PROTECTED PERSONS 109 CHAPTER 3: BAIL 110 SHOW CAUSE 112 CHAPTERS 8 & 9: IRAC & CASE BRIEFING 112 HOW TO WRITE A CASE BRIEF 112 SUGGESTED FORMAT FOR A CASE BRIEF 113 CHAPTER 4: SEARCH AND SEIZURE 114 FAMILY VIOLENCE 115 MOTOR VEHICLES 116 COMMONWEALTH: TERRORISM OR SERIOUS OFFENCE 116 EVIDENCE 117 4

5 Chapter 1: Foundations Three Justifications For Criminalisation: 1. Prevention of harm 2. Public interest - public wrongs, opposed to private wrongs (civil law), will be the subject of criminal law. 3. Morality - for conduct to be classed as criminal, it must involve moral wrongdoing. Criminalisation: The process of deeming acts criminally punishable. Writ of error: A writ issued by the appellate court, demanding that the lower court convey the record of a case to the appellate court so that the record may be reviewed for alleged errors of law committed during a juridical proceeding. Transgression: Contravention of a law, rule, or code of conduct. Elements of Guilt Actus Reus: The physical element of conduct constituting an offence; in order for there to be an actus reus, the conduct must be voluntary. Automatism (involuntary acts, which happen whilst asleep or unconscious) establishes a failure to prove actus reus, meaning that the alleged offender did not in fact commit the offence. Mens Rea: The mental element of conduct constituting an offence, which renders an offender guilty. Actus non facit reum nisi mens sit rea simply means that an act is not necessarily a guilty act unless the accused has the necessary state of mind required for that offence. Negligence: A falling short of the standard of care that would usually be exercised by a reasonable person; coupled with a substantially obvious risk. Criminal law insists upon a higher degree of negligence than does civil law. Strict & Absolute Liability: No Mens Rea is required to prove the defendant guilty of an offence under these rules. 5

6 Criminal Responsibility of Children A child below the age of 10 has no criminal responsibility (s 7.1 The Criminal Code Act 1995 (Cth)), whilst a child above the age of 10 but not yet 14 can be criminally responsible for an offence if the child knows that his or her conduct is wrong (s 7.2). The prosecution has the burden of proving whether or not the child knows that his or her conduct is wrong. Children s Courts are governed by the Children s Court Act 1987 (NSW) Doli Incapax: The presumption that a child is incapable of wrongdoing / crime. Argument: It seems obvious that children in the final stages of the 20th century are better educated and more sophisticated than their counterparts 200 years ago. A child of 12 in Australia has access to television, radio and the Internet, and has a far greater understanding of the world than a 12 year old at the time of the formation of this term. The prosecution may obtain information from teachers who know the child well. Corporations A corporation will be liable for the criminal acts of its officers and employees if it can be shown that those acts were, in reality, the acts of the corporation. s 12.1(1) of The Criminal Code Act 1995 (Cth), states: This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals. Punishment upon a corporation can include revocation of a licence, imposition of restrictions, and heavy fines (heavier than those of which can be placed upon a person). ss 4B(3) of Crimes Act 1914 (Cth); and 360A of Crimes Act 1900 (NSW), provide that a fine may be imposed upon a corporation where imprisonment is the only punishment provided for an offence. It is very doubtful that a corporation would be put on trial for murder, since a mandatory sentence to imprisonment is prescribed in all jurisdictions of Australia. The Aims of Punishment 1. Retribution: The punishment deserved to one who is guilty of committing an offence 2. Deterrence 3. Rehabilitation Plea Bargaining: When the case comes to court, it may be that the offender will offer to plead guilty to some of the charges if the remainder of them is dropped. 6

7 The Prerogative of Mercy: The power of the Crown to pardon an offender. It is also open to the Crown to require a lesser penalty than that imposed by the court, being it a shorter term of imprisonment to be served or a part-reduction of a fine to be paid. Motive: The circumstances leading a person to engage in certain conduct. Criminal law pays no attention to motive when deciding whether or not a defendant is guilty of committing an offence. Misappropriation / Embezzlement: The intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate Larceny: Theft; stealing. Whether it be grand or petty larceny, it is all punishable as larceny. s 117 of Crimes Act 1900 (NSW). Crimes Act 1900 (NSW) s 19A pertains to murder Double Jeopardy Special pleas are Autrefois convict (previously convicted) and Autrefois acquit (previously acquitted). A defendant may plead autrefois acquit should she or he be subsequently indicted for the same offence. The notion of autrefois acquit does not prevent a further prosecution for the same class of offence when committed against a different person. Abuse of Process It is an abuse of process for the prosecution to seek to rely on evidence, which is only relevant given the assumption that the accused was guilty of an offence, of which he or she was previously acquitted. In R v Storey [1978] 22 ALR 47, two men who were being prosecuted for abduction and rape, were acquitted of the rape charge. This being appealed be the prosecution in the High Court, was dismissed on the principle that a verdict of acquittal must not be challenged at a subsequent trial, and that an accused must be given the full benefit of such a verdict (Stated: Barwick CJ at 51-2). Evidence may not be used for the purpose of challenging, or diminishing the benefits to the accused of, the acquittal. Miscarriage of Justice: The conviction and punishment of a person for a crime they did not commit. Perjury (Crimes Act 1900 s 327) Where an accused has been acquitted of an offence, he or she may not be convicted of perjury in respect of evidence given by him or her at that earlier trial. In R v Carroll [2002] 194 ALR 1, the High Court held that it is an abuse of process for the prosecution to seek to go behind the earlier verdict of acquittal even though the verdict was obtained, in part at least, as a consequence of fraud. In the UK, since 2003, Part 10 of the Criminal Justice Act [2003] (UK) provides new prosecution rights of appeal against acquittal. 7

8 Burdens of Proof The Legal Burden: Risk of failure to persuade the trier of fact; the legal burden of proof lies on the prosecutor. The classic discussion of the legal burden is found in Woolmington v Director of Public Prosecutions [1935] AC 462. The Evidential Burden: The burden of the prosecution having to prove guilt upon the accused beyond reasonable doubt. In the case of insanity for example, the evidential burden is on the accused to prove beyond reasonable doubt that they were insane at the time of committing the offence. Refer to Insanity as a Defence below. Also the burden of the accused to prove irreproachable in such circumstances as being caught with possession of illicit drugs. Standard of Proof The prosecution must prove to the trier-of-fact on the balance of probabilities that the accused committed the alleged offence. The prosecution must prove this beyond reasonable doubt. Excusable Homicide (Florida Statute): Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner. Insanity as a Defence If an accused was insane at the time of committing the act or omission that constitutes the Actus Reus, that person could not have committed an offence. The evidential burden of proving insanity clearly lies on the accused. Every person is presumed to be sane. However, in Davis v United States [1895] 160 US 469, the United States Supreme Court held the burden to rest upon the prosecution. 8

9 Appeals in Australia The first trial lies from the trial court to the Full Court of the Supreme Court or to the Court of Appeal. A further appeal can be taken to the High Court of Australia (only if that court gives its special leave). The jurisdiction of the Supreme Court in relation to appeals is spelled out by statute (Criminal Appeal Act 1912 (NSW) ss 6-8). The courts have power to dismiss an appeal if satisfied that no substantial miscarriage of justice has occurred. The power, however, is treated as being exercisable only if the court is satisfied that a jury, which was not acting perversely, would inevitably have convicted the accused if it had received correct instructions from the trial judge. Appeals Against Acquittal The Crown has no general right of appeal against a jury s verdict of acquittal. If the jury convicts the accused, and the decision is reversed by an appellate court, then the Crown is open to seek appeal against that decision to the High Court of Australia. Appeals Against Sentence Pertaining to the Criminal Appeal Act 1912 (NSW) s 5; and the Crimes Act 1958 (Vic) s 567, a prisoner is able to appeal against the sentence passed on him or her. In NSW and Vic, the appellate court has power to increase the sentence even in cases where the appeal has been brought by the prisoner (Criminal Appeal Act 1912 (NSW) ss 5D, 6(3); Crimes Act 1958 (Vic) ss 567A(4), 568(4). 9

10 Chapter 2: Assault and Related Offences Contact: No injury Common assault (battery) s 61 Actus Reus Non-consensual contact Mens Rea Intention to make contact Defence Consent (cannot consent to unlawful activity) Collins v Wilcox Contact: Some injury Assault occasioning actual bodily harm s 51 Actus Reus Non-consensual contact causing actual bodily harm Mens Rea Intention to make non-consensual contact Recklessness D foresees possibility of harm Defence Consent (can consent to rough horse play) Brown; Wilson (engrave initials) Contact: Serious injury Assault occasioning GBH s 54 Actus Reus Non-consensual contact causing grievous bodily harm Mens Rea Intention to cause GBH s 33 Recklessness as to causing GBH (D foresees possibility of some harm) s 35 GBH by unlawful act No Defence Not able to consent to GBH Brown 10

11 Common Assault Can be either psychological (threat) or physical (battery) Was it a mere threat or was there battery? If there was battery Did it cause actual bodily harm or wounding? Did it cause GBH? Was it aggravated? Was there consent? Was it legally possible to consent? Crimes Act 1900 (NSW) s 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Threat Actus reus for common assault by threat is putting a person in fear or apprehension of physical violence; the fault element is the desire to create that fear. The expectation of physical contact constitutes the threat, even if the person is so far away that pursuing the threat would be impossible Mostyn Desire to place a person in fear suffices, even if the person did not actually fear Brady v Schatzer Does the victim need to be frightened? It was held that it is necessary Ryan v Kuhl How immediate does the threat need to be? Is a conditional threat assault? Knight; Rozsa v Samuels Conditional threats are not an assault, there was no immediate danger to the victim and the conviction was quashed Knight Taxi drivers were fighting about who was first in the queue, and one taxi driver threatened the other by reaching for a knife and threatening to use force I will cut you to bits, but will only attack you in self-defence the conditional threat became assault, because the amount of threat was beyond what would reasonably constitute self-defence Rozsa v Samuels Threats to harm the person in the future Zanker Does assault cover cases where the person does not desire to create the fear but knows it is likely to happen? Actual knowledge of the creation of fear is necessary McPherson v Brown To point a rifle at a victim who was unaware of what was going on was not an assault but held to be attempted assault (Barwick CJ) State v Barry (1912) unless it accidentally discharges and kills the victim manslaughter by unlawful and dangerous act Pemble v R (1971) It is an assault to point a loaded gun if apprehension is thereby created R v St George (1840) 11

12 The accused and the victim were in neighbouring cubicles; the accused thrust a knife through a hole to stop the victim from annoying him. The knife had not frightened the victim. McGarvie J held that there was no case for assault, as the victim was not apprehended. The accused could have been charged with attempted assault Ryan v Kuhl (1979) Battery Bringing about of non-consensual contact with the person consent is a defence to battery. Defence to battery is consent is there a type of assault, to which one cannot consent? Any touching of the person, no matter how slight, may constitute a battery the appellant was grabbed by a police officer for questioning it was held that this did not constitute battery. We do consent to a lot of touching in normal day life, however the touching by the police officer was an unlawful assault, as the officer continually touched the appellant Collins v Wilcox Assault is an alternative verdict to grievous bodily harm R v Taylor (1869); R v Snewing [1972] Mens Rea for Assault Either intention to cause non-consensual contact or recklessness is required in order for there to be an assault contemporaneity of mens rea and actus reus Fagan v Metropolitan Police Commissioner [1969] QB The mens rea can be created after the actus reus has already been done the accused created a fire and did not put it out Miller The degree of reckless indifference for murder is different to that of lesser crimes the foresight of possible injury is all that is required, opposed to probable R v Williams Police officers were struggling to arrest the appellant, who fell to the ground and lashed out wildly using his legs. In doing so, he kicked an officer in the hand, fracturing a bone. The appellant was convicted He lashed out with his feet, reckless as to who was there, not caring one iota as to whether he kicked somebody R v Venna [1976] QB An assault is not established by proof of a deliberate act, which gives rise to consequences, which are not intended the required mens rea must be established R v Lamb [1967] ER 12

13 Intentionally causing serious injury to a child Broking J: In the present case, the learned trial judge told the jury that the requirement that serious injury must be intentionally caused was met if the accused intended to do the act, which in fact caused serious injury. It was not necessary that the accused should have intended to cause serious injury. If the accused intended to do the act, and the act in fact caused serious injury, the offence was committed R v Westaway (1991) VSC Assault Cases Threats A threat of violence over the phone could be classed as a threat of immediate violence R v Knight (1988) Threats made by a driver of a moving vehicle to the passenger can create an apprehension of imminent harm for the purpose of psychological assault. The threats made by the accused is these cases made the victim jump out of the car D gave P a lift and as they were driving, offered her money for sexual favours, which she refused. He then increasingly accelerated while the plaintiff demanded to be let out. D said, I am going to take you to my mate s house. He will really fix you up. Plaintiff jumped out of the car at 60 km/h and was injured. D was held liable for assault Zanker v Vartzokas (1988); R v Roberts (1971) Actual bodily harm / wounding Actual bodily harm covers any hurt or injury calculated to interfere with the health or comfort of the victim, provided it is something more than merely transient and trifling R v Donovan [1934] KB The defendant has to only have had the intention to cause common assault, not to inflict actual bodily harm Coulter Cutting a person s hair constitutes assault occasioning actual bodily harm DPP v Smith [2006] Psychiatric injury constitutes assault occasioning actual bodily harm (however, in this case the distress suffered by the victim did not amount to legally recognised psychiatric injury) R v Chan-Fook [1994] Evidence of free bleeding will suffice to prove a wound was inflicted R v Devine (1982) The accused was very drunk and ordered his wife and daughter to go to bed. He realised that his wife had not gone to bed, and told her that he would make it so that she couldn t go to bed. The wife ran to the window and was held by the daughter. They were both very frightened. The accused ordered the daughter to let the wife go, and so she did. The wife fell to the pavement and sustained injuries. The accused was convicted of assault occasioning actual bodily harm and maliciously inflicting GBH. 13

14 Lord Coleridge CJ: If a man creates in another man s mind an immediate sense of danger, which causes such person to try to escape, and in doing so he injures himself, the person who creates such a state of mind is responsible for the resulting injuries R v Halliday [ ] The accused s fiancé informed him that she suspected the foreign exchange student had stolen her engagement ring. They questioned the student, then locked him in a room. He tried to escape but was injured jumping out of a window. The accused was not convicted, as although the phrase actual bodily harm was capable of including psychiatric injury, it did not include distress, panic, or hysteria, nor did it include states of mind that were not evident of an identifiable clinical condition R v Chan- Fook [1994] ER Other kinds of battery The accused punched a woman in the face while she was holding her 12-month-old child. As a result, the child fell from her arms and hit his head on the floor. The accused was convicted of battery upon the child the movement, by which the woman lost hold of the child, was entirely and immediately the result of the accused s action in punching her the battery was reckless rather than intentional Heystead v Chief Constable of Derbyshire [2000] Spitting can constitute an assault although there is no touching (battery) DPP v JWH 17 October (1997) NSWSC (Unreported) Grievous bodily harm The accused hit another man in the eye, causing the victim to lose most of the sight in that eye. He was convicted of maliciously inflicting grievous bodily harm R v Salisbury [1976] VR The accused was convicted of maliciously inflicting GBH; he put out the gaslights in a theatre and placed an iron bar across the doorway of an exit. In the resulting panic, several people were injured. It is not necessary to constitute the offence that the accused directly must inflict injury upon the victim R v Martin (1881) Aggravated assault: attempted murder The accused and his female companion were arguing while drunk in a car park. Three men became involved and a gun belonging to the accused was discharged, seriously injuring one of the three. The accused was charged with attempted murder, intentionally causing serious injury, and recklessly causing serious injury R v Campbell [1997] VR 14

15 Aggravated assault: police officer executing duties An assault is any act, which intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence Fagan v Metropolitan Police Commissioner [1969] QB 15

16 Aggravated Assault: Accompanied by particular intention Assault with Intent to Kill (Attempted Murder) Crimes Act 1900 (NSW) ss S 27: Acts done to the person with intent to murder Whosoever: Administers to, or causes to be taken by, any person any poison, or other destructive thing; or By any means wounds, or causes grievous bodily harm to any person With intent in any such case to commit murder, shall be liable to imprisonment for 25 years. S 28: Acts done to property with intent to murder Whosoever: Sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or Casts away or destroys any vessel, or By the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or Places, or throws, any matter or thing upon or across a railway, or Removes, or displaces any sleeper, or other thing belonging to a railway With intent in any such case to commit murder, shall be liable to imprisonment for 25 years. S 29: Certain other attempts to murder Whosoever: Attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or Shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or Attempts to drown, suffocate, or strangle any person With intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. S 30: Attempts to murder by other means Whosoever: By any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years. 16