PART V LAWS OF ASSAULT

Transcription

1 Criminal Law and Prcedure PART V LAWS OF ASSAULT I Scilgical Backgrund A Cntextualisatin The law f assault is structured int tw grups f ffences: 1 Assault 2 Sexual assault These crimes fall int the brader grup f crimes against the persn. B Objectives The law f assault seeks t address the scial prblem f public rder. C Develpment The develpment f new ffences has lead t an expansin f the limits f the law f assault. This expansin has seen it deal with new scial prblems (eg, the transmissin f HIV) in tw ways: 1 Using an existing ffence Eg, reckless endangerment, which nrmally applies in relatin t driving in a public place in such a way as t place pedestrians in danger (thus, criminal liability is still attached t the act resulting in the prhibited cnsequence risk regardless f whether a pedestrian is injured r HIV is actually transmitted) 2 Creating a new ffence Eg, s 19A, which makes it a crime t transmit a dangerus disease; this ffence deals with cases in which the disease is actually transmitted Stalking is anther example f a new scial prblem dealt with by the law f assault. Traditinal frms f assault are prblematic when applied t the kinds f factual scenaris which arise in the cntext f stalking. Acts which are in themselves inncuus (eg, giving flwers, sending a letter) may, thrugh repetitin (eg, sending them every hur), pattern (n an anniversary), r sme ther circumstance it culd nevertheless prduce the prhibited apprehensin f imminent vilence. T slve these difficulties, the legislature created a new ffence which incrprates as its central element the repetitin f seemingly inncent cnduct. The structure f mdern criminal law is such as t enable it t deal with new issues and changing factual patterns. It changes by altering the structure directly, thrugh legislatin, r using the structure t generate new ffences by a particular mde f applicatin. It is arguable, hwever, that changing the structures f criminal law can nly accmmdate new ffences t a certain Page 1 f 11

2 Criminal Law and Prcedure extent, and that new techniques f appraising wrngful cnduct are necessary in sme cases (eg, rape, stalking; circumstances -based crimes). D Statistics Sme salient statistics abut the lcatin at which assaults ccur: 40% ccur in private dwellings The mdern law f assault has increasing imprtance in private residences 24% in public streets/ftpaths Public spaces are the traditinal fcus f assault Age and gender f victims: 0-14: mre male victims 15-24: bracket mst likely t be assaulted; mre female victims Gender and lcatin f assaults: 68% f female victims are assaulted in the hme 28% f males are assaulted in the hme Frm these, sme brad prpsitins abut the current applicatins f the law f assault can be made: 1 As a matter f public rder, the prblem is ne f masculinity 2 In the cntext f dmesticity, the victim is typically female 3 Yung persns are at the highest risk II General Structure A (Fairly) Recent Refrms In Victria, 1985 saw a series f refrms t the law f assault. Under these refrms, much f the terminlgy used t frmulate ffences changed (eg, wunding, actual bdily harm, and grievus bdily harm became injury and serius injury). There was a cnslidatin f the majr legal develpments since the 1850s. Hmicide and assault share a cmmn apprach t evaluating liability. Bth shw n interest in the mdus perandi f a prhibited cnsequence. Instead, nly the cnsequence is imprtant. Thus, the fcus in assault is n the utcme. Examples: Basic indictable ffences: the cnsequence is injury r serius injury Stalking: the cnsequence is apprehensin in the mind f the victim Nte, hwever, recent refrms (R Hulls, 2004) which have had the effect f shifting the fcus f the crime f stalking t the acts f the accused (incnsistent) Page 2 f 11

3 Criminal Law and Prcedure In general, hwever, crimes are cmprised f a prhibited mentality attached t the causatin f prhibited cnsequences by the accused. This apprach is used t generate the basic structure fr nn-fatal ffences. B Overview General definitins f crimes are nw abstract and brad. These mst cmmnly ccur in the cntext f legislatin, such as the Crimes Act 1958 (Vic) r the Summary Offences Act 1958 (Vic). The basic structure f legislative definitins f assault is as fllws: 1 Cmmn assault Lw level; at the threshld f harm Applicatin f mere frce Lw level harm At the brder f inncence (the very bttm rung f criminal respnsibility) The gist f the ffence is the apprehensin f physical harm Battery is the actual applicatin f frce t the victim Dealt with in the Summary Offences Act and at cmmn law 2 Basic indictable ffences Deals with injuries; examine the harm: Injury Serius injury These are defined in s 15 f the Crimes Act ss 16-18, 24 define the basic indictable ffences 3 Supprting indictable ffences These further ffences supprt the divisin between basic indictable ffences and cmmn assault They serve tw primary purpses: Gap-filling (wing t the generality f the basic indictable ffences) Threats t cause serius injury are nt cvered by cmmn assault Status ffences (eg, assaulting a plice fficer) are identitybased; the punishment differs frm assaulting anther identity Extending liability frm causing actual t causing ptential cnsequences Reckless endangerment and stalking address risk and danger Similar t Wilsn: a culpability-dangerusness apprach Culpability: basic indictable ffences and cmmn assault Dangerusness: stalking, endangerment Here, there desn t need t be any effect n a victim, just ptential risk (rather than actual cnsequences) All assaults relevant t ur purpses fall within this basic structure. Page 3 f 11

4 Criminal Law and Prcedure III Cmmn Assault A Physical Elements If the prsecutin can prve beynd reasnable dubt that the accused caused the victim t apprehend immediate and unlawful frce, the accused will be guilty f an assault (Zanker; Bartn). 1 Did the victim apprehend r fear immediate and unlawful vilence r frce? V must knw she is being threatened (Pemble) Eg, if V knws the gun is laded (McNamara) Mere wrds Insufficient; need sme additinal cnduct (Knight) MacPhersn: yelling and bstructin causes fear r apprehensin f physical assault Omissin Assault nrmally requires psitive act Fagan: ding precisely nthing can be an act fr the purpses f assault Future threats Prima facie, future threats are nt immediate (Knight) Hwever, if there is a present and cntinuing apprehensin f imminent frce, will be sufficient (Zanker) Zanker: threat f future rape ( he will really fix yu up ) can induce a cntinuing fear f vilence V pwerless t prevent A carrying ut his threat Helpless and imprisned in mving vehicle Bartn: future threats ver telephne can be immediate if they place V in cntinuing fear f harm and relatinship such as t make fear reasnable Beech: breaking pen V s dr induced fear f imminent sexual assault Knight: threats made t plice nt assault because they dn t threaten immediate vilence Cnditinal threats Rsa: taxi driver t V: if yu dn t mve I ll stab yu with this knife can create apprehensin f harm Alternatively, if the accused can be prved t have actually applied frce t the victim, the accused may be guilty f a battery (Cllins). 2 Did the accused actually apply physical frce t the victim? Lw threshld; frce need nt be vilent r cause injury (Cllins v Wilcck: tuching sufficient) A s frce must be directed at V A s frce must be unlawful Cnsider: cnsent, SD, lawful arrest Page 4 f 11

5 Criminal Law and Prcedure B Fear f Imminent Harm MacPhersn v Brwn: Facts: During student prtests, the administratin building was ccupied at Flinders University The victim, Dr Gibbs, helps security t remve the students frm the building The next day, ne student has a verbal exchange with Gibbs Later, as he is walking t his ffice, Dr Gibbs is surrunded by 30 students, led by MacPhersn There is a verbal interchange; n threats are made, but the grup blcks the lecturer s passage He attempts t mve them ut f the way, in respnse t which they yell assault!, which they subsequently chant In evidence, Gibbs said he was in fear f physical harm frm the accused at this time After a perid f sme 15 minutes have passed, the students let him cntinue Issue: Did MacPhersn engage in cnduct which he knew r ught t have knwn might give cause fr belief f imminent harm in the mind f Dr Gibbs? Reasning: Because n physical cntact is invlved, this case immediately falls int the categry f the apprehensin type f assault The prfessr was falsely imprisned by the students, fr he was unable t escape them Bray CJ and Jacbs J: Factual uncertainty prevents guilty verdict Zelling J: A fear was induced in Dr Gibbs that if he tried t get away, his prgress wuld be impeded and if necessary retrained until this cnfrntatin had taken place The circumstances f the false imprisnment cnstitute the assault Decisin: Blcking Gibbs passage by surrunding him recklessly put him in fear f danger Hwever, factual uncertainty means the defendant must be acquitted Zanker v Vartzkas: Facts: The accused gives a lift t the victim He ffers her mney t perfrm sexual favurs; she refuses He respnds by accelerating; she tries t pen the dr, but he accelerates further He says he will take her t his mate s huse, where he will really fix yu up She jumps frm the car, nw travelling at 60km/h Issue: Is her fear f sexual assault smetime in the future sufficient t cnstitute the prhibited apprehensin f immediate harm? Page 5 f 11

6 Criminal Law and Prcedure Reasning: Her fear is f later harm instead f immediate harm abut t be directed at her by the driver The immediacy requirement is satisfied when the victim is held in place and cannt prevent the harm r escape Hwever, the requirement shuld nt be read literally: It is ne f imminence, nt cntempraneusness The victim s fear in this case is present and cntinuing Just because she desn t knw where the mate s huse is, that desn t excuse fear f harm The accused has falsely imprisned her this imprisnment cntinues, alng with her fear, since she is at his mercy Tw analgies are drawn: Cat and muse Hiker and stalker In bth cases, the exact mment f injury is knwn nly t the aggressr The victim is nly aware f the vague threat f injury in the future Hwever, it is still an assault where the victim is pwerless t prevent the aggressr frm carrying ut his threat, as where they are helpless r imprisned Decisin: The imprisnment and threat cnstituted an assault and the accused was respnsible fr the victim s injuries; the accused is cnvicted fr assault ccasining actual bdily harm C Mental Elements T be guilty f an assault r battery, the accused must have intended r been reckless as t inducing the victim s apprehensin f frce (Beech; Venna). 1 Did the accused intend t cause r recklessly caused apprehensin f frce? 2 Did the accused intend t apply r recklessly applied frce? Recklessness is freseeing the apprehensin as a pssible cnsequence f the accused s cnduct (Venna) 3 Did the mens rea temprally cincide with the actus reus? The prsecutin may cnstruct the events as a single cntinuum (as in Fagan) Mens rea must ccur smetime within the curse f the crime Need nt ccur cntempraneusly; mens rea can arise during the curse cmmitting the actus reus Hwever, mens rea cannt arise after the actus reus is cmplete (Fagan) Page 6 f 11

7 Criminal Law and Prcedure IV Basic Indictable Offences A Causing Injury If the prsecutin can prve beynd reasnable dubt that the accused caused injury (r serius injury) t the victim, the accused will be guilty f an ffence under ne f the fllwing sectins f the Crimes Act 1958 (Vic): Sectin 16 Sectin 17 Sectin 18 Sectin 19A Sectin 24 negligently causing serius injury 1 Was the victim injured? Injury includes uncnsciusness, hysteria, pain, mental harm, disease, and any substantial impairment f bdily functin Need nt be permanent but must be mre than merely transient r trifling (Dnvan) Alternatively, the victim may have been seriusly injured, in which case a different class f ffences applies. 2 Was the victim seriusly injured? Serius injury is a high standard: smething shrt f death (Kane) A very serius disease (ie, HIV) is serius injury: s 19A B Mens Rea 1 Did the accused intend t cause the injury? A must have willed r desired the cnsequence (injury/serius injury) The cnsequence is what is relevant (Westway) Sectin 16 (serius injury) Sectin 18 (injury) Sectin 19A (intentinally transmitting very serius disease) 2 Was the accused reckless as t causing the injury? Cnflicting authrities: fresight f a pssibility (Cleman) cf fresight f a prbability (Campbell; Nuri) P must establish A fresaw at least the pssibility (r prbability) f injury/serius injury and was indifferent t the cnsequences Sectin 17 (serius injury) Page 7 f 11

8 Criminal Law and Prcedure Sectin 18 (injury) 3 Did the accused negligently cause the serius injury? Apply Nydam see [2.4.5] Sectin 24 (serius injury nly) C Defences 1 Did the accused have a lawful excuse fr causing the injury? The accused must establish the excuse beynd reasnable dubt 2 Was the accused s cnduct dne with an intentin f gdwill? (Phillips) Phillips: n battery where A drags V acrss sand t determine whether she is alright Cf Bughey: (murder) tuching cartid arteries fr gratificatin irrelevant 3 Did the victim cnsent t the injury (but nt serius injury)? If V expressly r impliedly cnsented t the injury, A will nt be liable (Cllins) Situatins in which cnsent will preclude liability: Cntact sprts (within the rules f the game: Brwn) and prize fighting Dangerus Pastimes (bravad, mrtificatin) Rugh hrseplay Prstitutin Cnsensual fighting Medical treatment and surgery (but nt grss cnduct) Cmmn intercurse f life (implied cnsent: Brwn) Cnsent may be vitiated: Public plicy (Brwn: cnsensual sexual acts) Fraud Yuth Mental disability Serius injuries cannt be cnsented t by V Brwn: sadmaschistic sexual injuries cannt be cnsented t even thugh n permanent injury Wilsn: hetersexual branding can be cnsented t Brwn prtects bth individual and sciety uphlds nrms Transmissin f HIV is a serius injury Mhammed Dica: V knew f A s HIV, but cannt cnsent t the transmissin because it is a serius injury Nte that self-defence als applies. See belw Part VI. Page 8 f 11

9 Criminal Law and Prcedure 4 Was the accused acting in self-defence? V Supprting Indictable Offences A Gap-Filling Offences Varius ffences are defined in the Crimes Act 1958 (Vic). These will primarily be relevant where the accused cannt be cnvicted fr cmmn law murder, manslaughter, r assault (eg, where the accused is negligent in a peculiar circumstance, such as driving r attempting lawful arrest). Offence Intentinally transmitting a very serius disease (HIV) Sectin (Crimes Act 1958 (Vic)) s 19A Threats t kill (intentinally r recklessly causing V fear) s 20 Threats t cause serius injury (same MR) Wider than cmmn law assault: need nt be immediate Brader in scpe than cmmn law threats Recklessly engaging in cnduct that places r may place anther persn at risk f death Recklessly engaging in cnduct that places r may place anther persn at risk f serius injury s 21 s 22 s 23 Setting a trap with intent/recklessness t kill anther persn s 25 Setting a trap t cause serius injury (same MR) s 26 Extrtin with threat t kill (btaining by vilence) s 27 Extrtin with threat t destry prperty s 28 Using firearm t resist lawful arrest s 29 Threatening injury t resist arrest r investigatin s 30 Assault with intent t cmmit indictable ffence (eg, rape) Assault f plice fficer/assault with intent t resist arrest Use f firearms in the cmmissin f indictable ffence s 31(1)(a) s 31(1)(b) s 31A Page 9 f 11

10 Criminal Law and Prcedure B Stalking If it can be prven that the accused engaged in a curse f cnduct fr the purpses f causing physical r mental harm in the victim r arusing apprehensin f fear, the accused will be guilty f stalking the victim under the Crimes Act 1958 (Vic) s 21A. 1 Has the accused engaged in a curse f cnduct that culd amunt t stalking under s 21A(2)? (a) Fllwing V r anyne else (b) Cntacting V r by any means whatsever (ba) Publishing by electrnic cmmunicatin t any persn material (i) cncerning r (ii) purprting t cncern V r any ther persn (bb) Causing an unauthrised cmputer functin in a cmputer wned by V r anyne else (bc) Tracing V s use f electrnic cmmunicatins (c) Entering r litering utside r near V s r any ther s residence r business r any ther place frequented by V (d) Interfering with prperty in V s r any ther persn s pssessin (e) Giving/leaving ffensive material t/fr V r any ther persn (f) Keeping V r any ther persn under surveillance Gunes v Pearsn per McDnald D Berlyn v Brusks per Nettle J (g) Acting in any ther way that culd reasnably be expected t aruse apprehensin r fear in V fr their safety 2 What is the curse f cnduct? The lcus f the ffence f stalking is a prtracted curse r pattern f cnduct Has A s rmance with V gne wrng? Is there a neighburhd r plitical disputes between A and V? Is A excessively trying t seduce V? Is A an excessive fan f V? Relevant factrs: Timeframe in which cnduct ccurred (Cnnlly: prtracted) Number and frequency f acts Intent with which acts were dne (Cnnlly: A trying t win ex-girlfriend back) 3 Did A intend t cause physical r mental harm t V r aruse apprehensin r fear in V fr their safety? (s 21A(2)) Intentin includes where A knws (subjectively) r ught t have knwn (bjectively) that his curse f cnduct wuld be likely t cause such harm r aruse such apprehensin r fear (s 21A(3)(a), s 21A(3)(b)) A need nt have actually caused the apprehensin It des nt matter whether V was utside f Victria if A was in Victria (s 21A(7)) Page 10 f 11

11 Criminal Law and Prcedure It des nt matter whether A was utside f Victria if V was in Victria (s 21A(6)) C Endangerment Offences The accused may be guilty f reckless endangerment if the prsecutin can establish that the accused s cnduct placed r may have placed the victim in danger f death (s 22) r f serius injury (s 23). 1 Wuld a reasnable persn engaging in X fresee that its prbable cnsequences place V at an appreciable risk f death/serius injury? Objectively, the risk must be a prbable cnsequence f X V need nt actually suffer serius injury r death; cncerned with ptential cnsequences f A s cnduct P must adduce evidence that the risk f death r serius injury is at least appreciable (dangerus) Dangerus if an appreciable risk f death/serius injury Eg, evidence f actual risk f infectin frm unprtected HIV sex, and actual risk f death r serius injury if infected 2 Did A intend t engage in the relevant cnduct while being reckless as t the danger f death (s 22) r f serius injury (s 23) in which the victim is r may be placed and went ahead regardless f the freseen prbability f death r serius injury? A must fresee death r serius injury as prbable cnsequences f ding X (Mutemeri) Mutemeri: A has HIV, has unprtected sex with V, knwing f risks; A needs t intend t engage in the cnduct; he must fresee an appreciable risk f death r serius injury; such a lw prbability f catching the disease (between 1/667 and 1/2000) that the risk f death was nt appreciable Filmer v Barclay: As make and set ff bmbs in a park; 2 d nt explde; later, they explde when children are in the playgrund; nne is hurt; As must have freseen that bmbs wuld prbably result in death r serius injury Page 11 f 11