FACULTY OF LAW LAWS5004 CRIMINAL LAW (OFFENCES & DEFENCES) EXTENDED SUMMARIES

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1 Raffael Maestri! 1 FACULTY OF LAW LAWS5004 CRIMINAL LAW (OFFENCES & DEFENCES) EXTENDED SUMMARIES OFFENCES DEFENCES Assault (non-sexual) Provocation Sexual Assault Self-Defence Homicide I: Murder Duress & Necessity Homicide II: Negligent Manslaughter and Manslaughter by Unlawful & Dangerous Act Property offences (Larceny) Mental Impairment: Mental illness (insanity) and Automatism Intoxication and Substantial Impairment by Abnormality of Mind

2 Raffael Maestri! 2 OFFENCES ASSAULT (NON-SEXUAL) (I) COMMON ASSAULT...! 15 Crimes Act 1900 (NSW) s 61 - Common Assault prosecuted by indictment (1) Assault by Force! (a) Definition! (b) Actus Reus of Assault by Force! Spitting as an assault DPP v JWH (unreported, NSWSC, 17 October 1997) (c) Mens Rea of Assault by Force! (i) Intention! (ii) Recklessness! Crimes Act 1900 (NSW) s 4A - Recklessness (2) Assault by Threat of Force! (a) Definition! (b) Actus Reus for Assault by Threat of Force! (i) Positive Act! Positive Act Fagan v Commissioner of Metropolitan Police (1962) 1 QB 439 (ii) State of mind of the victim! (iii) Imminence/Immediacy! Threats made over the telephone Barton v Armstrong [1969] 2 NSWR 452; NSWSC Threats of future violence (distinguished from Barton v Armstrong) Knight (1988) 35 A Crim R 314 Silent Phonecall R v Ireland; R v Burstow [1997] 4 All ER 225; House of Lords Immediate and continuing fear Zanker v Vartzokas (1988) 34 A Crim R 11 (iv) Conditional Threats! Looking at the words of the threat: Whether D had the right to impose the condition: Rozsa v Samuels [1969] SASR 205 (c) Mens Rea of Assault by Threat of Force! (i) Intention! (ii) Recklessness! Must be subjective MacPherson v Brown (1975) 12 SASR 184 (II) COMPOUND ASSAULTS! (1) Assaults causing particular injuries! Crimes Act 1900 (NSW) s 59 - Assault occasioning actual bodily harm (a) Actus Reus for Assaults causing particular injuries (s 59)!... 26

3 Raffael Maestri! 3 (b) Mens rea for Assaults causing particular injuries! (2) Assaults with further specific intent! (3) Assault on Particular classes of people! Crimes Act 1900 (NSW) s 58 - Assault with intent to commit a serious indictable offence on certain officers Actus Reus Mens Rea Reynhoudt (1962) 107 CLR 381 Assaults on officers using offensive weapons or dangerous substances Crimes Act 1900 (NSW) s 60 - Assault and other actions against police officers (4) Other Assaults! (a) Assaults using offensive weapons or dangerous substances! Crimes Act 1900 (NSW) s 4 - Definitions Crimes Act 1900 (NSW) s 33B - Use or possession of weapon to resist arrest etc. (b) Causing Disease! Public Health Act 1991 s 11 - Precautions against spread of certain medical conditions (III) HARM OFFENCES...! 32 Crimes Act 1900 (NSW) s 4(1) - Definitions (a) Intentional Assault (with specific intent )! Crimes Act 1900 (NSW) s 33 - Wounding or grievous bodily harm with intent (b) Reckless Assault/Wounding! Crimes Act 1900 (NSW) s 35 - Reckless grievous bodily harm or wounding (d) Negligence! Crimes Act 1900 s 54 - Causing grievous bodily harm (IV) CONSENT TO HARM...! 35 (a) General! Brown [1994] 1 AC 212 (b) Consent to medical treatment! Marion s Case (1992) 175 CLR 218 (c) The chastisement of children! Crimes Act 1900 (NSW) s 61AA - Defence of lawful correction (V) DOMESTIC AND PERSONAL VIOLENCE...! 39 (a) General! Crimes (Domestic and Personal Violence) Act 2007 Part 1, s 5 - Meaning of domestic relationship Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 11 - Meaning of domestic violence offence (b) Stalking and Intimidation! Crimes (Domestic and Personal Violence) Act 2007 Part 1, s 7 - Meaning of intimidation ; Part 1, s 8 - Meaning of Stalking Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 13 - Stalking or intimidation with intent to cause fear of physical or mental harm (c) Apprehended Violence Orders! Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 14 - Offence of contravening apprehended violence order Crimes (Domestic and Personal Violence) Act 2007 Part 4, s 16 - Court may make apprehended domestic violence order; Part 5, s 19 - Court may make apprehended personal violence order (VI) OFFENCES RELATING TO PUBLIC ORDER...! 43

4 Raffael Maestri! 4 Crimes Act 1900 (NSW) s 93A - Definition; s 93B - Riot; s 93C - Affray; s 93D - Mental Element Under sections 93B and 93C SEXUAL ASSAULT (I) CONTEXTUAL CONSIDERATIONS! (a) General! The need to address problems associated with investigation and trial process!44. (b) Law Reform! Further amendments! (II) THE CURRENT OFFENCES/PRIMARY STATUTORY PROVISIONS...! 47 (A) Primary Offences! Crimes Act 1900 (NSW) s 61I - Sexual assault Crimes Act 1900 (NSW) s 61K - Assault with intent to have sexual intercourse Crimes Act 1900 (NSW) s 61M - Aggravated indecent assault Crimes Act 1900 (NSW) s 61O - Aggravated act of indecency (B) Aggravated Sexual Assault! Crimes Act 1900 (NSW) s 61J - Aggravated sexual assault Crimes Act 1900 (NSW) s 61JA - Aggravated sexual assault in company Offensive weapon or instrument (s 61J)(2)(b))! Sexual assault in company! (C) Abolition of the Common Law Immunities! Common law immunity for minors Crimes Act 1900 (NSW) s 61S - Offenders who are minors Marital Immunity Crimes Act 1900 (NSW) s 61T - Offender married to victim ACTUS REUS OF SEXUAL ASSAULT! Crimes Act 1900 (NSW) s 61I - Sexual assault (a) Sexual Intercourse! Crimes Act 1900 (NSW) s 61H - Definition of sexual intercourse and other terms (b) Consent! Crimes Act 1900 (NSW) s 61HA - Consent in relation to sexual assault offences Definition of cognitive impairment - relevant to s 61HA(4)(a) Crimes Act 1900 (NSW) s 61H - Definition of sexual intercourse and other terms Consent and Submission! Mueller [2005] NSWCCA 47 Aiken [2005] NSWCCA 328 Consent induced by fraud and mistake! Papdimitropoulos (1957) 98 CLR 249 (c) Assault component in indecent assault (S61L)! MENS REA OF SEXUAL ASSAULT! (a) Intent to have non-consensual sexual intercourse, belief in or knowledge of, consent! Crimes Act 1900 (NSW) s 61HA(3) - Knowledge about consent Absence of consent!... 57

5 Raffael Maestri! 5 Common law authority for the application of subjective standards (displaced by s61ha(3)(c)) DPP v Morgan [1976] AC 182 Recklessness as to consent! (i) Reckless advertence (subjective advertence) (ii) Reckless inadvertence Kitchener (1993) 29 NSWLR 696 Banditt [2005] HCA 80 Tolmie (1995) 37 NSWLR 660 INDECENT ASSAULT & ACT OF INDECENCY! (a) Indecent Assault! Crimes Act 1900 (NSW) s 61L - Indecent assault Actus Reus Mens Rea Fitzgerald v Kennard (1995) 38 NSWLR 184 Assault within the meaning of s 61L Consent (b) Acts of indecency! Crimes Act 1900 (NSW) s 61N - Act of indecency HOMICIDE I - MURDER PATTERNS OF HOMICIDE! A Wallace, Homicide: The Social Reality Relationship between victim and offender! Homicide involving intimates! Family homicide! Femicide! Child homicide! Killing friends and acquaintances! Male Violence! Weapons! ACTUS REUS OF MURDER...! 68 Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined (a) Volition! (b) Death must be of an alive person! Death of child or embryo Crimes Act 1900 (NSW) s 20 - Child murder-when child deemed born alive Person deemed dead Human Tissue Act 1983 s 33 - When death occurs (c) Causation! Act or omission causing death Causation Tests! The operating and substantial cause test (favored) R v Smith [1959] 2 QB 35 R v Hallett [1969] SASR 141 The natural consequence test Royall v The Queen (1991) 172 CLR 378

6 Raffael Maestri! 6 The reasonable foreseeability test Royall v The Queen (1991) 172 CLR 378 The various legal tests are discussed in Royall Royall (1991) 172 CLR 378 Hallett [1969] SASR 141 Defendant must take Victim as found! Blaue [1975] 3 All ER 446 Novus Actus interveniens! Acs of the victim R v Bingapore (1975) 11 SASR 469 Acts of a third party 1.) Medical Treatment R v Jordan (1956) 40 Cr App R 152 R v Smith [1959] 2 QB 35 R v Pagett (1983) 76 Cr App R 279 (d) Coincidence! MENS REA FOR MURDER...! 78 Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined (a) Intention to kill! (b) Intention to inflict grievous bodily harm! Crimes Act 1900 (NSW) s 4(1) - Definitions (c) Reckless indifference! Crabbe CLR 464 Standard of foresight required - Probability of death/gbh Wilful Blindness Applying Crabbe in New South Wales! Probabilities and Possibilities! Boughey (1986) 65 ALR 609 Faure [1999] 2 VR 537, (d) Task for jury! CONSTRUCTIVE/FELONY MURDER...! 83 Mraz v R (No. 2) (1956) 96 CLR Ryan (1967) 121 CLR 205 Munro (1981) 4 A Crim R 238 HOMICIDE II: MANSLAUGHTER Definition! Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined INVOLUNTARY MANSLAUGHTER...! 86 (I) Manslaughter by unlawful and dangerous act! (a) Definition & Elements! Wilson (1992) 174 CLR 313 (b) Characteristics of the reasonable person! Wills [1983] 2 VR 201 (c) The Unlawful Act!... 88

7 Raffael Maestri! 7 Downes (1985) 18 A Crim R 75 Lamb [1967] 2 QB 981 R v Rik [2004] NSWCCA 282 Requirement of directness! Dalby [1982] 1 All ER 916 Mitchell [1983] 1 QB 741 Goodfellow (1986) 83 Cr App R 23; Dalby was again distinguished: (II) Manslaughter by criminal negligence! (a) Definition and Elements! Nydam [1977] VR 430 Lavender (2005) 218 ALR 512 Summary (b) Negligent Omissions! Omission cases (establishing duty of care)! General care and protection based on relationships: e.g. a duty owed by parents towards their young children R v Russel [1933] VLR 59 Crimes Act 1900 (NSW) s 43A - Failure of persons with parental responsibility to care for child General care and protection which are voluntarily assumed towards a helpless person R v Stone and Dobinson [1977] 1 QB 354 R v Takak (1988) 34 A Crim R 334 PROPERTY OFFENCES (INCLUDING LARCENY) Property Offences in Context! LARCENY! (a) Definition! Crimes Act 1900 (NSW) s Punishment for larceny (I) Actus Reus! (a) Property must be capable of being stolen! Crimes Act 1900 (NSW) s 4 - Definitions - Property Things capable of being stolen! Exceptions! Land (2) Fixtures Crimes Act 1900 (NSW) s Stealing etc metal, glass, wood etc fixed to house or land Crimes Act 1900 (NSW) s Stealing etc trees etc in pleasure-grounds etc (3) Animals (4) Intangible property (b) Ownership & Possession! (1) Actual Possession! Anic, Stylianou and Suleyman (1993) 61 SASR 223 (2) Constructive Possession! Hibbert v McKiernan (1948) (c) Property is taken and carried away (asportation)! Wallis v Lane [1964] VR 293 (d) Property must be taken without consent!

8 Raffael Maestri! 8 Facilitation & Consent! Kennison v Daire (1986) 60 ALR 249 Implied licence! Kolosque v. Miyazaki (unreported NSWSC) Mistaken Consent! Potisk (1973) 6 SASR 389 Illich (1987) 162 CLR 110 Mistake as to identity of transferee Mistake as to the type of property handed over Mistake as to the quantity of the property Riley Principle! Riley [1853] 169 ER 674 (II) Mens Rea! (a) Intention to permanently deprive! Holloway (1848) 1 Den 370 Phillips & Strong (1801) 2 East PC 662 Intention to return the property! Crimes At 1900 (NSW) s Intent to return property no defence Foster (1967) 118 CLR 117 Exhausting virtue of the property! Changing the nature of the property! Smails (1957) WN (NSW) 150 Weatherstone (1987) 8 Petty Sessions Review 3729 Fungibles! (b) Property must be taken dishonestly or fraudulently! Crimes Act 1900 (NSW) s 4B - Dishonesty Freely [1973] 1 QB 530 Ghosh [1982] 1 QB 1053 Rejection of Ghosh Peters (1998) 192 CLR 493 Larceny by finding! R v Thurborn (1849) 169 ER 293 R v MacDonald [1983] 1 NSWLR 72; NSWCCA (c) Taking of property must be without a claim of right! Fuge (2001) 123 A Crim R 310 EXPANDING THE SCOPE OF PROPERTY OFFENCES...! 114 (I) Larceny by a Bailee! Crimes Act 1900 (NSW) s Larceny by bailee (1) Accused was in possession of the property as a bailee Ward (1938) 38 SR (NSW) 308 (2) Accused took or converted the property (3) Accused acted fraudulently (II) Fraudulent Appropriation! Crimes Act 1900 (NSW) s Fraudulent appropriation (III) Joyriding! Crimes Act 1900 (NSW) s 154A - Taking a conveyance without consent of owner

9 Raffael Maestri! 9 (IV) Aggravated offences! (a) Robbery! Crimes Act 1900 (NSW) s 94 - Robbery or stealing from the person Crimes Act 1900 (NSW) s 95 - Same in circumstances of aggravation Crimes Act 1900 (NSW) s 98 - Robbery with arms etc and wounding Crimes Act 1900 (NSW) s 99 - Demanding property with intent to steal DEFENCES: JUSTIFICATIONS AND EXCUSES PROVOCATION (I) GENERAL...! 120 Crimes Act 1900 (NSW) s 23 - Trial for murder-provocation (a) Burden of proof! (b) Should partial defences be allowed?! (II) PROVOCATIVE CONDUCT/CIRCUMSTANCES...! 122 (a) Provoking Conduct! Words alone? Lees [1999] NSWCCA 301 (b) Self induced provocation! Edwards [1973] AC 648 Within the sight and hearing of the accused: Hearsay provocation! Quartly (1986) 22 A Crim R 252 Davis (1998) 100 A Crim R 573 (III) THE SUBJECTIVE TEST: TIME & LOSS OF SELF-CONTROL...! 125 Time Chhay (1992) 72 A Crim R 1 The element of time Loss of self-control R (1981) 28 SASR 321 Criticism of R: (IV) THE ORDINARY PERSON TEST...! 128 Crimes Act 1900 (NSW) s 23(2)(b) - Trial for murder-provocation (1) Gravity of the provocation - how the accused evaluated the provocation! (a) Gender & the Battered wife Syndrome ( BWS )! Osland (1999) 159 ALR 170 (b) Intoxication! (c) Homosexual advances! Green (1997) 191 CLR 334 (2) Characteristics of the Ordinary Person! (a) Ordinary Person test & Characteristics! Stingel (1990) 171 CLR 312 Nexus between the subjective and objective tests The objective test

10 Raffael Maestri! 10 Identifying the gravity The characteristics of the ordinary person The characteristic of age Application (b) Ethnicity! Masciantonio (1995) 183) CLR 58 Criticism of the objective standard SELF-DEFENCE (AND EXCESSIVE SELF-DEFENCE) (I) GENERAL: HISTORY & REFORM...! 134 (1) History of Self-Defence! Zecevic v DPP (1987) 162 CLR 645 (2) Statutory Reform! (a) Self-Defence Legislation! Crimes Act 1900 (NSW) s Self-defence-when available Crimes Act 1900 (NSW) s Self-defence-onus of proof Crimes Act 1900 (NSW) s Self-defence-not available if death inflicted to protect property or trespass to property Crimes Act 1900 (NSW) s Self-defence-excessive force that inflicts death Crimes Act 1900 (NSW) s Self-defence-response to unlawful conduct (b) Preceding questions: For what threats can the defendant raise self defence?! Self-defence and the defence of others Duffy [1966] 1 All ER 62 Self-defence and the defence of property R v McKay [1957] VR 560 Nature of the attack! Pre-emptive strikes Unlawfulness (II) THE TWO LIMBS! Crimes Act 1900 (NSW) s 418(2) - Self-defence-when available (a) The Katarzynski test! Katarzynski [2002] NSWSC 613 (1) The accused s belief in the necessity of response! (a) Subjective Test! (b) Battered women s syndrome! State of New Jersey v Kelly (1984) 478 A 2d 364 Battered Wife s Syndrome Landmark Canadian case Lavalle (1990) 55 CCC (3d) 97 Runjanjic and Kontinnen (1991) 53 A Crim R 352 upheld Lavallee Osland (1999) 159 ALR 170 (2) Whether the conduct was a reasonable response in the circumstances as perceived by the accused! (a) Reasonableness of response! Excessive Self-defence Crimes Act 1900 (NSW) s Self-defence-excessive force that inflicts death

11 Raffael Maestri! 11 (b) Intoxication! (III) THE NEXUS BETWEEN THE OFFENCE AND THE THREAT! (a) Nexus between threat & offence! Burgess; Saunders [2005] NSWCCA 52 The threshold question The existence of a nexus (IV) ONUS OF PROVING SELF-DEFENCE! NECESSITY Crimes Act 1900 (NSW) s Self-defence-onus of proof Kurtic (1996) 85 A Crim R 57 Origins! Dudley and Stephens (1884) 14 QBD 273 *Southwark LBC v Williams [1971] Ch 734, English Court of Appeal (I) ELEMENTS! Loughan [1981] VR 443 Rogers (1996) 86 A Crim R 542 Determining whether the accused honestly believed on reasonable grounds that his actions were necessary to avert the threatened harm! (a) Objective/Subjective Standard! (b) Factual considerations to determine reasonable grounds for defendant s actions! (i) The nature of the emergency! (II) The Accused s belief in imminence of peril! (II) SCOPE OF THE DEFENCE! (a) Necessity and prison escapes! Loughnan [1981] VR 443: (b) Necessity and driving offences! White (1987) 9 NSWLR 427 (NSWDC) (c) Medical necessity! Re: A (Children) [2000] 75 CRR (2d) 233 (d) The regulation of abortions! DURESS CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 (I) NATURE OF THE DEFENCE! (a) General! (b) Burden of Proof! (II) ELEMENTS...! 157 (a) Elements of Duress! Lawrence [1980] 1 NSWLR 122

12 Raffael Maestri! 12 The reassertion of the mind The law of duress three principle elements (b) Nexus between the threat and the commission of the crime! (III) LIMITATION ON THE DEFENCE! (a) Type of threat! (b) The belief in the threat! (c) Continuing and imminent threats! Hudson and Taylor [1971] 2 QB 202 (d) The opportunity to re-assert the will! Taiapa [2009] HCA 53 (e) Voluntary involvement with a criminal enterprise! (f) Duress and Murder! (IV) THE OBJECTIVE TEST...! 162 (a) The person of ordinary firmness of mind! Abusafiah (1991) 21 NSWLR 531 Provocation and duress are not analogous issues Directions relating to duress Directions applied to the facts of the particular case (b) Duress and battered woman syndrome! (c) Proof of duress! THE INSANITY DEFENCE (MENTAL ILLNESS) (I) THE M NAGHTEN RULES! M Naghten s Case [ ] All ER Rep 229 (II) ELEMENTS...! 166 (a) Pathology: Disease of the mind! (c) Cognitive Impairment! Porter (1933) 44 CLR 182 Element (1): Nature and quality of the act physical nature and consequences rather than moral aspects Element (2): Knowledge of wrongfulness The definition of wrong Cheatham [2000] NSWCCA 282 (c) Burden of Proof! (d) Scope! Kemp [1957] 1 QB 399, (e) Fitness to Plead! AUTOMATISM (I) GENERAL...! 171 (a) Definition! (b) Presumption of mental capacity: the evidential burden! (c) Burden of proof! Woodbridge [2010] NSWCCA 185 re sane automatism:

13 Raffael Maestri! 13 (II) INSANE AND NON-INSANE AUTOMATISM...! 172 (a) Recurrence test! Bratty v Attorney-General for Northern Ireland [1963] AC 386 (b) Internal/External Test! Falconer (1990) 171 CLR 30 The standard of the ordinary person s mental strength Causes of automatism Exempting qualifications a malfunction of the mind NOT a disease of the mind Results of proving exempting qualifications total acquittal Application (c) Unsound/sound mind test! Woodbridge [2010] NSWCCA 185 (III) CAUSES OF AUTOMATISM! (a) Dissociation! (b) Hypoglycaemia/hyperglycaemia! (c) Epilepsy! (d) Sleepwalking! (e) Concussion! (IV) VOLUNTARINESS & PSYCHIATRIC EVIDENCE...! 179 SUBSTANTIAL IMPAIRMENT (I) GENERAL/CONTEXT! (II) ELEMENTS...! 181 Crimes Act 1900 (NSW) s 23A - Substantial impairment by abnormality of mind Elements: (a) Abnormality of the mind! Byrne [1960] 2 QB 396 (b) Causes of abnormality! (c) Substantial impairment! (d) Sentencing Issues! Veen (1979) 53 ALJR 305 (III) INFANTICIDE...! 184 Crimes Act 1900 (NSW) s 22A - Infanticide INTOXICATION (I) SELF-INDUCED INTOXICATION! (a) Common Law Background! The Basic/Specific Intent Dichotomy! Lipman [1970] 1 QB 152 DPP v Majewski [1977] AC 443 Australian Position O Connor (1980) 146 CLR 64 Crimes Act 1900 (NSW) s 428H - Abolition of common law relating to self-induced intoxication

14 Raffael Maestri! 14 (b) Burden of Proof! (c) Legislation! Crimes Act 1900 (NSW) s 428A Definitions Crimes Act 1900 (NSW) s 428B - Offences of specific intent to which Part applies Crimes Act 1900 (NSW) s 428C - Intoxication in relation to offences of specific intent Crimes Act 1900 (NSW) s 428D - Intoxication in relation to other offences Intoxication and Murder Crimes Act 1900 (NSW) s 428E - Intoxication in relation to murder and manslaughter Relationship between intoxication and other defences Crimes Act 1900 (NSW) s 428F - Intoxication in relation to the reasonable person test (II) INTOXICATION WHICH IS NOT SELF-INDUCED! (a) General! Crimes Act 1900 (NSW) s 428G - Intoxication and the actus reus of an offence

15 Raffael Maestri! 15 OFFENCES Assault (non-sexual) (I) COMMON ASSAULT Context is paramount: a very minor contact, causing no physical injury, may constitute an assault if the actor possesses a certain state of mind (such as the intention to frighten). All common assaults are charged under s61 of the Crimes Act, but ordinarily will be dealt with summarily by the Local Courts. Sections deal with most assault offences. The common law originally contained separate offences of assault and battery, but fit under the general term assault in the modern criminal law. In Darby v. DPP (NSW) (2004) 61 NSWLR 558, Giles JA noted: o An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault the distinction between assault and battery has been said to be in terms more easily understood by philologists than by ordinary citizens and in common parlance the infliction of unlawful force is spoken as an assault This usage has crept into the law, as a convenient abbreviation and in legislation the distinction remains, and must be recognised ( at [71]-[72]). Table 2 offence - prosecution can elect to have it trialed summarily or on indictment. Two Forms both covered under s 61: 1. An assault is any act committed intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence (assault by threat of force). 2. Where a person causes force to be applied to the body or clothing of another (assault by force) 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. (1) ASSAULT BY FORCE (a) Definition Actus reus (physical element): The application of force to the body of another person without consent or lawful justification. Mens rea (Fault element): Intending to use unlawful force on another person or being reckless as to the use of such force (MacPherson v Brown). (b) Actus Reus of Assault by Force An omission to act does not constitute an assault [Fagan] A person, intentionally or recklessly, causes force to be applied to the body or clothing of another (R v Day (1845) 1 Cox 207. The force used need not be violent/hostile, but can be as slight as a mere touch (Collins v Wilcock [1984] 1 WLR If an injury results from the application of force and it is more than minor, then the accused may be charged with an aggravated assault. Usually, an assault is committed by delivering a blow with a limb or using a weapon of some kind.

16 Raffael Maestri! 16 Directness: At common law, application of force must be direct in that it must be aimed at the victim or an object on which the victim is supported (R v Salisbury [1976] VR 452). o May be some capacity for assault to result when the force is indirect (Martin 1881) 8 QBD 54 Spitting as an assault DPP v JWH (unreported, NSWSC, 17 October 1997) [FACTS: JMW was charged with the assault of two police officers at Mt Druitt police station. As he entered the charging dock he turned and spat saliva in the direction of Constable Harris (some of it falling on the police officer s face). At the same time, some of the spittle fell on the back of the shirt worn by Constable Grainger. The magistrate dismissed both charges. he held that, in relation to the spitting at Constable Harris, the act of spitting did not constitute an application of force and that, in relation to the charge concerning Grainger, there s no prima facie case that JWH assaulted him because Mr. Grainger was unaware of the incident and I don t consider that the necessary ingredients are made out. ] The act of spitting at or on someone will constitute battery, and in given circumstances, may constitute assault. Held: Hulme J quashed the magistrate s findings. The common law recognised as distinct offences, assault and battery. In this context an assault is constituted by an act which intentionally or recklessly causes another to apprehend immediate and unlawful violence. The offence of battery, involves the actual infliction of unlawful force on another, be it ever so small. Another matter which should be noted in the current context is that the clothes a person is wearing are regarded as so intimately connected with the person that to touch the clothes is regarded as touching the person. o The final references to authority I would make on this aspect are to R v. Smith (1866) 4 F & F 1066, 176 ER 910 and R v. Cotesworth (1704) 6 Mod 172, 87 ER 928, wherein it was held that spitting on another was battery. In the former of these cases it was also said that spitting at someone was an assault (in the narrow sense of that term) but it would seem to me that in light of the elements of assault referred to above, thus must depend on the circumstances and not all actions of spitting at someone will amount to assaults (in the narrow sense of that term) o The magistrates reasons for dismissing the charge of assault involving Constable Harris, viz. that the act of spitting did not constitute an application of force, cannot stand consistently with what has been the law for over 200 years. (c) Mens Rea of Assault by Force Intentionally or recklessly effecting unlawful contact (battery): Fagan (1969); Venna (1976) (i) Intention Assault has been referred to as a crime of basic intent (R v O Connor (1980), in that it is a crime involving a specified form of conduct and intention which is therefore indicative of the accused having meant to perform the conduct. o Common assault as a conduct crime - intention as to the use of force rather than bringing about a result. o A narrow form of intention is appropriate to bring about an at of a particular kind (Per Brennan J in He Kaw Teh) Subjective test: accused means to use force on the victim. It is unnecessary that the intentional application of force be accompanied by hostility. In Boughly [1986]: o D was a doctor who, for the sexual arousal of his partner, applied manual pressure to her carotid arteries. He had not intended to cause her injury, but to increase her sexual excitement for this purpose of sexual activities they were engaged in at the time. D was charged with

17 Raffael Maestri! 17 o murder when this practise resulted in her death. He argued that he had intended no injury. It was held that hostile intent is not an ingredient to the offence of battery at common law where force is intentionally applied to V. The court noted that hostile intent could convert what would otherwise not be a battery into battery: It has never been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary ingredient of an unlawful battery. Where the existence of hostility or hostile intent may be of decisive importance is in a case [in] which that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom the force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law nor, of itself, constitutes a justification or excuse for it. (ii) Recklessness Crimes Act 1900 (NSW) s 4A - Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. Subjective test: An assault will be made out if the accused foresaw unlawful force (Fagan v Commissioner of Metropolitan Police). Degree of foresight required: The weight of authorities is clear that the standard for reckless assault is that of possibility rather than probability [see MacPherson v. Brown (1975); Coleman (1990)] In Coleman (1990) 19 NSWLR 467: o The court considered recklessness as the mental state required for the charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse. Where the facts alleged that the accused acted maliciously through foreseeing certain criminal consequences, then the degree of foresight must be probable where the crime charged is murder and possible for other statutory offences. In Venna (1975) o o D lashed out at police officers seeking to arrest him, resulting in D fracturing one police officer s hand. D was charged with assault occasioning actual bodily harm (ABH). D stated that he had not intended to hit V, but was kicking in an attempt to get off the ground. It was held that if he recognised the possibility of unlawful contact he had mens rea for assault. D was found guilty. (2) ASSAULT BY THREAT OF FORCE (a) Definition Actus Reus (physical element): An assault by the threat of force is any act committed intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence (Darby v DPP (2004) 61 NSWLR 558.) Mens Rea (mental element): Intentionally or recklessly putting another person in fear of immediate and unlawful violence (Macpherson v Brown (1975)) (b) Actus Reus for Assault by Threat of Force The defendant must act (conduct) so as to create an apprehension by the victim of imminent unlawful contact.

18 Raffael Maestri! 18 (i) Positive Act An omission to act is rarely sufficient to constitute an assault [Fagan] The courts have a broad definition of what constitutes a positive act, including silent phone calls [R v Ireland; R v Burstow; )]. o A series of silent telephone calls that caused fear of immediate and unlawful bodily harm amounted to assault. Threats over the telephone may be sufficient (if accused has some form of power over the victim and is in a position to carry out the threats (Knight, qualifies Barton v Armstrong). The use of threatening words has also been held to constitute a positive act in all common law jurisdiction (NB must be a threat of immediate violence, threats of future violence will not suffice) [Tout; Knight]. Conditional threat may be sufficient if unlawful: Rozsa v Samuels Positive Act Fagan v Commissioner of Metropolitan Police (1962) 1 QB 439 [FACTS: The appellant was reversing a motor car, when Police Constable Morris directed him to drive the car forwards to the kerbside and standing in front of the car parked out a suitable place in which to park. The appellant drove forward towards him and stopped it with the offside wheel on Morris left foot. Get off, you are on my foot said the officer. Fuck you, you can wait said the appellant. The engine of the car stopped running. Morris repeated several times for the appellant to get off his foot. Eventually the appellant reversed the car off the officer s foot. To constitute the offence of an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault. An assault is an act which intentionally, or possibly recklessly, causes another person to apprehend immediate and unlawful personal violence, and...the actual intended use of unlawful force to another person without his/her consent. Held: The court held that whether the driving onto the foot was accidental or intentional, the accused still knowingly, unnecessarily, and provocatively allowed his car to remain there after the battery had been identified. The crucial question was whether the actus reus could be considered spent after the car came to rest on the foot, or whether it was a continuing act operating until the wheel was removed. Although assault is an independent crime and is to bet related as such...assault is generally synonymous with the term battery and isa term used to mean the actual intended use of unlawful force to another person without his consent. Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. The distinction between a continuing and completed actus reus is whether the consequences continued to flow. o If the act, as distinct from the results thereof, is a continuing act there is a continuing threat to inflict unlawful force. o If the assault involves a battery and, that battery continues there is a continuing act of assault. o For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The actus reus is the action causing the effect on the victim s mind. The mens rea is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault. The question of assault was considered by James J: o To constitute the offence of an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault for our part we think the crucial question is whether in this case

19 Raffael Maestri! 19 the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until the wheel was removed. o There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant s argument is that it seeks to equate the facts of the case with such a case where motorist has accidently run over a person, and, the action having been completed, fails to assist the victim with the intent that the victim should suffer. The appeal is dismissed. (ii) State of mind of the victim The victim must actually have been put in fear of imminent unlawful contact [Barton v. Armstrong; MacPherson v. Brown] As a consequence, the victim must be aware of/apprehended the threat of imminent unlawful contact. If the victim is unconscious or asleep, then a (psychic) assault cannot be committed. o In Pemble (1971) 124 CLR 107 the victim was unaware that the defendant was pointing a rifle at her back. Menzies J therefore held that the D had not committed an assault on the victim. There are questions as to whether it is necessary for the offence that the victim is actually fearful: o In Ryan v. Khul [1979] VR 315 where a knife was thrust though the wall of a toilet cubicle to threaten the next-door occupant, the intended victim was not afraid because of the defendant s actions. This was because the victim believed that the accused could not harm him so long as he had hold of the knife handle in the adjoining cubicle. Whether the victim is uncommonly strong willed and as such is not fearful should have nothing to do with establishing the conduct for assault. o Brady v Schatzel: It is not material that the person assaulted should be put in fear...if that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person All that is required is the anticipation of the application of unlawful personal violence. o Contradictory authority: It is suggested that the V s fear must be reasonable, in the sense that a reasonable person would have also been in fear, that is, D s liability is limited by an objective test [Barton v. Armstrong; Brady v Schnatzel (1911)] However, the question is more likely to revolve around whether D had the necessary mens rea to create an apprehension of imminent unlawful contact than whether V s fear was reasonable. This is because authorities are clear that, where D knows that V is of unusual timidity, the unreasonableness of the fear may not prevent conviction [MacPherson v Brown]. Where V s fear is unreasonable, and D has no knowledge of this timidity, then clearly D will not have mens rea. An apprehension of personal violence may exist even where the accused is not in a position to carry out the threat. o o E.g. if a victim reasonably believes that a firearm may be loaded and that he or she is within range, the accused s actions may amount to an assault whether the gun is actual loaded or not (R v Everingham). In R v Everingham (1949) 66 WN (NSW) 122 the accused pointed a toy gun at a taxi driver who thought it was real. The NSWCA held that these facts established as clear a case of assault as could be imagined. (iii) Imminence/Immediacy General Rule: At common law, V must apprehend imminent or immediate unlawful violence [Zanker v. Vartzokas]. Thus, generally, threats of future violence should not amount to an assault [Knight]

20 Raffael Maestri! 20 Instances where the apprehension of bodily harm has been considered to be immediate include: o Where the accused was in another room (R v Lewis [1970] Crim Lr 647); o Where the accused was on the other side of a locked door, apparently about to break it down (Beech (1912) 7 Cr App R 197); o o Where the accused opened a drawer and showed the victim a gun delcaring that he would hold her hostage (Logdon v DPP [1976] Crm Lr 121); and Where the accused peered in through a bedroom window at the victim who was wearing her night clothes (Smith v Chief Superintendent Woking Police Station (1983) 76 Cr App R 234) Threats made over the telephone Threats made over the phone have raised questions of imminence, and the courts have continued to grapple with this issue. In Barton v Armstrong, D made threats over the phone. It was held that D could be guilty of assault provided that the threats were sufficient to ground a fear of imminent violence in V s mind. While, Barton v Armstrong was distinguished on the facts in Knight. o Telephone calls will not normally be sufficiently immediate for criminal liability, unless the accused has some form of power over the victim and is in a position to carry out the threats (Knight). Knight limits Barton v Armstrong to this kind of specific factual situation. Whether assault can be constituted by silent telephone calls in appropriate circumstances was considered in England by the House of Lords [R v Ireland] Barton v Armstrong [1969] 2 NSWR 452; NSWSC [FACTS; The plaintiff and defendant were members of the Sydney business community who had been engaged in an acrimonious equity suit in the Supreme Court of NSW in relation to the acquisition of shared in a public company. One of the allegations made by the plaintiff in the equity suit was that he had executed a certain deed under the duress of the defendant. The plaintiff, in this court, alleges that on very many occasions the defendant threatened to do or to have done to him physical violence, to the extent of having killed him and that the defendant had hired agents to stalk the plaintiff. The defendant telephoned the plaintiff in the early hours of the morning threatening him in an atmosphere of drama and suspense.] Threats over a telephone could put a reasonable person in fear of later physical violence and that can constitute an assault although the victim does not know exactly or even approximately when that physical violence may be applied. NB: Defendant in a position of authority over the plaintiff - in a position to carry out the threats (power differential which distinguished Knight ) Held: D could be guilty of assault provided that the threats were sufficient to ground a fear of imminent violence in V s mind: o Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an inference with personal freedom and integrity, and the right of a person to be free from fear of insult. If the threat produces the fear or apprehension of physical violence, then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached. (per Taylor J) The essence of assault is the expectation raised in the mind of the victim of physical contact from the threat of the defendant. An assault is the threat by one man to inflict unlawful force upon another. The actus reus of assault thus consists in the expectation of physical contact which the offender creates in the mind of the person whom he threatens Mere words themselves were not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence.