ASSAULT Limb 1 s245(1) battery at common law Elements: 1. Application of Force 2. Directly or indirectly 3. Without Consent

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1 ASSAULT Limb 1 s245(1) battery at common law 1. Application of Force 2. Directly or indirectly 3. Without Consent 1. Application of Force (s245(2)) Applies force applying heat, light, electrical force, gas, odour, or any other substance or thing if applied to such a degree as to cause injury or personal discomfort Force must be intentional: McLver 2. Directly or indirectly Indirectly (eg using a dog: Croft v Blair) 3. Without Consent q. of fact Implied consent to some degree to non violent contact in some circumstances: Kimmorley v Atherton What level of force was consented to? (eg Raabe agreeing to a fist fight but then the other dude picks up a pole and hits you with it. Didn t consent to that level of force). Consent in sport McNamara v Duncam 1

2 Limb 2 s245(1) assault at common law 1. Attempts/ threatens to apply force 2. By bodily act or gesture 3. With actual or apparent present ability to effect purpose 1. Attempts/threatens to apply force Intent is required: Hall v Fonceca Must be intent to make the threat but there is no need for there to be an intent to carry out the threat 2. By bodily act or gesture Mere words are insufficient: Fogden v Wade Words + bodily act satisfy: Dale (where he had ruler under his shirt to look like a gun and said this is a stick up words as well as the act of hiding the ruler). Conditional threats are sufficient (threat to do something unless someone else does a certain act) Rozsa v Samuels 3. With actual or apparent present ability to effect purpose Based on the victim s state of mind: Victim must be aware of the threat: Dale Victim does not have to be in fear: Brady v Schatzel 4. Without consent Implied consent to some degree to non violent contact in some circumstances: Kimmorley What level of force was consented to? Raabe Consent in a sporting context McNamara v Duncan 2

3 ASSAULTS OCCASIONING BODILY HARM s339 Bodily harm defined in s1: any bodily injury which interferes with health or comfort Must be some identifiable bodily injury eg: black eye, bloodied nose: Lergesner v Carroll (mere sensation of pain is not sufficient: Scatchard ) Consent to AOBH is possible Q. of fact what degree of violence was consented to: Lergesner If pain continues AFTER the assault, continuing pain can be a symptom that can easily amount to an injury: Campbell. Defences self defence: R v Muratovic (A) The accused: 1. Unlawfully; 2. Assaulted another person; and 3. Thereby did that other person bodily harm (B) The accused: 1. Unlawfully; 2. Assaulted another person; and 3. Thereby did that other person bodily harm; and 4. The accused was, or pretended to be, armed with a dangerous or offensive weapon or instrument (see s411 and 425); and/or 5. Was in company with one or more other person or persons Where the other circumstance of aggravation is alleged: 1. The accused was in a public place; and 2. The accused was adversely affected by an intoxicating substance 3

4 SERIOUS ASSAULTS s340 Crime 7 years Range of circumstances, including: assaulting a police officer: s340(1)(b) police officer has to be in execution of their duty. i) the offender bites or spits on the police officer or throws at, or in any way applies to, the police officer a bodily fluid or faeces; ii) the offender causes bodily harm to the police officer; iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument penalty 14 years imprisonment. assaulting a person over 60 years: s340(1)(g) assaulting a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device: s340(1)(h) OFFENCES ENDANGERING LIFE/HEALTH Chapter 29 CC offences defined by defined seriousness/consequences Assault is not a defined element of the offence focus is on consequences Note: 1. victim cannot consent to these offences 2. s268/9 provocation defence does not apply: Kaporonovski 4

5 GRIEVOUS BODILY HARM (GBH) s320 CC crime 14yrs max imprisonment s268/9 defence of provocation does not apply: Kaporanovski. As these provisions only apply to offences in the definition of which an assault is an element. A person cannot be convicted of assault occasioning bodily harm on an indictment charging only the doing of GBH: Saylor. 1. Unlawfully 2. Does 3. GBH must result 1. Unlawfully Not authorised, justified or excused under law Requires the Crown to prove that the doing of the GBH was contrary to law and not excused: Knutsen 2. Does Kuntsen, inter alia, that for the purpose of making a person a principal offender there is in some cases under the Criminal Code, an element that a result was likely to happen from the prisoner s act or conduct and that is the test to be applied on a charge of doing GBH under s320. Knutsen ordinary reasonable person test: what the ordinary reasonable person thinks was likely to result and which did result: objective test. 3. GBH must result: s(1) a. the loss of a distinct part of an organ of the body; or b. serious disfigurement overruled in Tranby c. Any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment could have been viable: Lobston, re 1997 amendment, overruled Tranby biting off an ear not GBH Disease is not a bodily injury for s320 Clarence Intended to cause particular harm is not an element of s320, but causation must be proved Can do GBH by direct act/ failure to perform duty ss (routes to prove causation of GBH): Clark 5

6 UNLAWFUL WOUNDING s323 CC misdemeanour 7yrs Provocation ss268 and 269 is not a defence to a charge under subs(1): Williams; Kaporonowski 1. Wounds another wounds requires a breaking of the true skin (bleeding) The nature of the means by which the wound is inflicted is immaterial. R v Smith hammer was used; R v Duffill the use of an instrument is not necessary. 2. Unlawfully not authorised, justified or excused under law Devine; Eisenhower; Jervis TORTURE s320a crime 14yrs Definition: The intentional infliction of severe pain or suffering, one act or a series of acts, on one or more than one occasion 1. Inflict severe pain or suffering on another person pain or suffering physical, mental, psychological or emotional suffering: Burns Whether temporary or permanent: s320a(2): Geddes, Griffin (administered electric shocks on child), Ping (did not amount to torture, consequences followed immediately upon the complainant not performing a task, therefore not done with intent to torture, improbable to suffer severe stress disorder from the skippers conduct) 2. Intentionally Intention has no specific legal definition. It is to be given its ordinary, everyday, meaning. It is a purpose or design. Must prove that the purpose of the assaults was to inflict that harm on the complainant. (e.g It must be proved that the appellant consciously decided to beat the complainant in order to cause him severe psychological distress.) 3. By an act or a series of acts on one occasion or more than one occasion 6

7 OFFENCES WITH SPECIFIC INTENT s315 Disabling in order to commit indictable offence s316 Stupefying in order to commit indictable offence s316a Unlawful drink spiking s317 Acts intended to cause GBH and other malicious acts: 1. one of the relevant intents; and 2. one of the relevant actions Maim deprive a person of a use of some member, to mutilate or cripple: Woodward per Douglas J s317(f) striking with projectile : R v Brannigan and Green (baseball bat) s317(b) transmit a serious disease def s1: Reid (HIV) NEGLIGENCE CAUSING BODILY HARM s328 s328 mmisdemeanour 2 years 1. Does an act or omitted to act where a duty to act 2. Cause bodily harm s1 definition 3. Unlawfully Duties in s s286 Duty to provide necessaries s286 Duty of person who has care of child s288 Duty of persons doing dangerous acts s289 Duty of persons in charge of dangerous things s290 Duty to do certain acts 7

8 DOMESTIC VIOLENCE did not include any extra Carter s notes s8(1) Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) Behaviour by a person towards another person in a relevant relationship that is: physical or sexually abusive or economically or psychologically abusive or commercially abusive or threatening or coercive s8(2) includes: a. causing or threatening personal violence b. coercing or attempting to coerce to engage in sexual activity Where coerce means to compel or force c. damaging or threatening to damage property d. depriving or threatening to deprive of liberty e. threatening death or injury to anyone f. threatening self harm so as to torment, intimidate or frighten g. causing or threatening death or injury to an animal so as to control, dominate or coerce h. unauthorised surveillance: i.e reading SMS messages; monitoring account; monitoring a person's account with a social networking site; using a GPS to track movements; checking GPS history i. unlawfully stalking a person s359b Associated domestic violence s9 Behaviour to a child, relative or associate of aggrieved Relevant Relationships intimate personal family informal care relationship defined in detail in ss14 to 20 can include past relationship 8

9 Domestic Violence Orders Available s23(2) DFVPA Protection order Temporary protection order: made for a short period until court determines whether to make a protection order Court can make a DV order if satisfied s23(2): relevant relationship exists; and respondent has committed domestic violence; and the order is necessary or desirable to protect the aggrieved from domestic violence These are not criminal offences, therefore wider section available for orders. Applying for a Domestic Violence Order s25; 32 DFVPA Aggrieved the person for whose benefit a domestic violence order is in force, and only one person may be the aggrieved Authorised person adult whom the court believes is authorised by the aggrieved even though not in writing. e.g persons unable to sign authorities due to a disability Police officer who has investigated and has the reasonable beliefs mentioned in s100(2) DFVPA A person acting under another Act.e.g guardian under Guardianship and Administration Act 200; an attorney under Powers of Attorney Act 1998 Police Protection Notice s101; 102 If police present; and reasonably believes the respondent has committed domestic violence; and reasonably believes no domestic violence order has been made; reasonably believes should not be taken into custody suspicion is insufficient: George v Rockett But must first obtain approval of supervising officer (by any means). s116(1) DFVPA the police can take the respondent into custody If they suspect on reasonable ground that an act of domestic violence has been committed; and Another person is in danger of personal injury by the person or property is in danger of being damaged Must then apply, as soon as reasonably practicable, for a protection order naming the person as respondent: s118 9

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