(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

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1 SAMPLE Aggravated Assault s 59 Assault Occasioning ABH 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. D could be charged with assault occasioning ABH under s 59 of the Crimes Act 1900 (Hereafter referred to as CA ). The prosecution must prove all elements of the crime BRD (Woolmington). It is presumed that the accused has legal capacity to commit the offence, and there is nothing on the facts to negate that general presumption. (eg not a child) Option: On the facts, D may raise the defence of claim of right/duress/necessity/mental illness/severe intoxication to negate MR. Under s 428G self-induced intoxication cannot be used to negate the conduct element of voluntariness. However, if intoxication was not self-induced, the accused will not be criminally responsible for conduct resulting from intoxication. is the most likely charge against D. Actus Reus The Prosecution is entitled to assume D s actions were voluntary (Falconer). There are three AR elements that must be proven to establish assault occasioning ABH. They are 1. Unlawful contact/causing victim to fear immanent unlawful contact (R v Brown) Non-self induced intoxication? s 428G The prosecution must prove there was an application of unlawful contact/d caused victim to fear immanent unlawful contact (R v Brown). D s actions in clearly demonstrate an application of unlawful contact - R v Brown - individuals consenting in ABH (genital torture, violence to anus, penis and testicles) amounts to an offence based on the wider interests of society. An individual cannot consent to actual bodily harm. - Assault only occurs when there is a positive act (it cannot be an omission) (Fagan) Justice James: a mere omission to act cannot amount to assault OR Zanker v Vartzokas 1 violence threatened was more immediate than in Barton v Armstrong. In the circumstances, D s actions induced in her mind 1 a woman was offered a lift in a car with a man who said he would pay her in return for sexual acts. She declined and he threatened saying I ll take you to my mates house, he ll fix you up would not let her out of the car and accelerated. (charged with assault occasioning actual bodily harm).

2 an apprehension of imminent conduct. Exemplified immediate and continuing fear sympathetic towards V. 2. The injury amounts to ABH. The prosecution must then prove that the injury V sustained amounts to ABH as defined in (R v Donovan). V s injury of clearly interferes with the health and comfort of V and is more than mere transient or trifling (R v Donovan). - any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling (R v Donovan [1934] 2 KB 498). - Jury determines if the injury amounted to ABH. 3. D s actions occasioned ABH The unlawful contact/causing victim to fear immanent unlawful contact must be a substantial cause of V s injury to establish assault occasioning ABH (Zanker v Vartzokas). Use one of the tests below: - Causation: the unlawful contact/causing victim to fear immanent unlawful conduct was the operative and substantial cause of V s ABH. (Royall) OR but for D s actions V would not have been injured to the degree of ABH (Hallett) OR due to D s actions was a reasonable and natural consequence for an ordinary person to attempt to escape resulting in ABH. (Royall) There may be some difficulties proving the AR elements of assault occasioning ABH, namely. Mens Rea The prosecution is then required to prove D either intentionally (R v Venna) or recklessly (MacPherson v Brown) applied unlawful contact/(psychic). I will deal with both of these in turn 1. Intentionally apply unlawful contact/caused V to fear immanent unlawful conduct (R v Venna) The prosecution may prove D intended to apply unlawful conduct, the prosecution need not prove D intended to do ABH. D, clearly intending to apply unlawful contact (R v Venna)> - does not have to be an intention to do ABH. Under s 428D, self-induced intoxication cannot be taken into account when determining the MR of basic intent crimes. However, if intoxication was not self-induced as per the definition in s428a, intoxication may be taken into account to negate MR. 2. Recklessly applied unlawful contact/ caused V to fear immanent unlawful conduct Conversely, to satisfy the reckless MR requirement, the prosecution need only prove D foresaw the possibility his conduct may result in unlawful contact/might induce fear and continued regardless (MacPherson v Brown). D s actions - MacPherson v Brown 12 SASR 184: Actual knowledge is the standard of recklessness. the accused must foresee his or her conduct might induce fear and mere inadvertence to the risk is not sufficient. Subjective test

3 Apprehension of fear: - Edwards v Police (1998) 71 SASR 493: Debelle J: The mens rea for such an assault is the defendant s intention to produce that expectation [imminent unlawful violence] in the victim s mind or where the defendant whilst not desiring to cause such fear, realises that his or her conduct may do so and persists with it. Temporal Coincidence (Fagan) must have intended to create fear when fear of imminent conduct was created or must have intended to apply force when force was applied. Defences 1. Mental Illness 2. Duress 3. Necessity The prosecution would successfully/have difficulty proving the actus reus/mens rea elemements of fraud Option: D could likely rely on the defence of Sentence: Under s59, D is liable for imprisonment for up to 7 years

4 s 33 Intentional GBH or wounding **Purely statutory do not have to prove an assault. D could be charged with intentional GBH or wounding s 33 of the Crimes Act 1900 (Hereafter referred to as CA ). The prosecution must prove all elements of the crime BRD (Woolmington). It is presumed that the accused has legal capacity to commit the offence, and there is nothing on the facts to negate that general presumption. (eg not a child) Option: On the facts, D may raise the defence of claim of right/duress/necessity/mental illness/severe intoxication to negate MR. Under s 428G self-induced intoxication cannot be used to negate the conduct element of voluntariness. However, if intoxication was not self-induced, the accused will not be criminally responsible for conduct resulting from intoxication. is the most likely charge against D. 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly. Actus Reus Prosecution is entitled to presume D s actions were voluntary (Falconer). The three AR elements of intentional GBH are derived from s33 CA and are as follows: 1. Unlawful force/contact Non-self induced intoxication? s 428G The prosecution must prove there was an application of unlawful contact/d caused victim to fear immanent unlawful contact (R v Brown). D s actions in clearly demonstrate an application of unlawful contact

5 - R v Brown - individuals consenting in ABH (genital torture, violence to anus, penis and testicles) amounts to an offence based on the wider interests of society. An individual cannot consent to actual bodily harm. - Assault only occurs when there is a positive act (it cannot be an omission) (Fagan) Justice James: a mere omission to act cannot amount to assault OR - Zanker v Vartzokas 2 violence threatened was more immediate than in Barton v Armstrong. In the circumstances, D s actions induced in her mind an apprehension of imminent conduct. Exemplified immediate and continuing fear sympathetic towards V. 2. Injury needs to amount to GBH or wounding The injury sustained by V needs to amount to GBH or wounding. V s injury of can be classified as really serious bodily harm (Perks) or permanent or serious disfiguring of the person s4 CA, therefore amounts to GBH. - the prosecution only have to establish that the harm amounted to GBH for AR. Jury decides whether injury amounts to GBH or wounding. Griffiths [1999] SASC 70 - GBH is defined as really serious bodily harm (Perks) - wounding is defined as the infliction of an injury which breaks the continuity of skin (Shepherd 2003) - GBH is defined under s 4 Crimes Act Causation "Grievous bodily harm" includes: (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). The unlawful contact/causing victim to fear immanent unlawful contact must be a substantial cause of V s injuries (Zanker v Vartzokas). Use one of the tests below: - Causation: the unlawful contact/causing victim to fear immanent unlawful conduct was the operative and substantial cause of V s GBH. (Royall) OR but for D s actions V would not have been injured to the degree of GBH (Hallett) OR due to D s actions was a reasonable and natural consequence for an ordinary person to attempt to escape resulting in GBH. (Royall) 2 a woman was offered a lift in a car with a man who said he would pay her in return for sexual acts. She declined and he threatened saying I ll take you to my mates house, he ll fix you up would not let her out of the car and accelerated. (charged with assault occasioning actual bodily harm).

6 1. Intentionally caused GBH Mens Rea To establish MR, the prosecution must prove D intended to cause GBH to V through his/her actions s 33 CA. On the facts. Considering that intentional GBH/wounding is within the definition of a specific intent crime in s428b, self-induced and non-self-induced intoxication can be taken into account when determining whether D have the necessary MR for the offence (s428c(1)). Temporal Coincidence (Fagan) The prosecution must establish D intended to cause GBH at the time GBH was caused. Defences 4. Mental Illness 5. Duress 6. Necessity The prosecution would successfully/have difficulty proving the actus reus/mens rea elemements of fraud Option: D could likely rely on the defence of Sentence: Under s33, D is liable for imprisonment for up to 25 years

Topic 5 Non-fatal,Non-sexual offences against the person

Topic 5 Non-fatal,Non-sexual offences against the person Examine how the criminal law deals with some common harms against the person and cover the elements of several non-fatal, non-sexual offences against