OFFENCES AGAINST THE PERSON

Transcription

1 OFFENCES AGAINST THE PERSON Cmmn Assault s335 - Any persn wh assaults anther is guilty f a misdemeanr. Assault s245(1)! LIMB 1 (actual applicatin f frce) a persn wh strikes, tuches r mves, r therwise applies frce f any kind t, the persn f anther applies frce s245(2) heat, light, electrical, gas, dr r anything else that can result in discmfrt either directly r indirectly Crft v Blair use f dg withut the persns cnsent Lergesesner v carrl Kimmrley cnsent can be express f tacit Hran v Fergussn cnsent t nrmal intercurse f life Cnsent immaterial if actual injury dne s246(2)! LIMB 2 (attempt r threat t apply frce) Bdily act r gesture Attempting r threatening t apply frce f any kind Hall v Fnceca intentin assumed in LIMB2. Wrds can be enugh if accmpanied by a gesture. Withut cnsent Lergesesner v carrl Kimmrley cnsent can be express f tacit Hran v Fergussn cnsent t nrmal intercurse f life Cnsent immaterial if actual injury dne s246(2) Actual r apparent present ability t effect that purpse (Brady v Schatzel) Need nt be immediate (Secretary) - Cmmn Assault applicable when n injury ccurs (R v Mallard) - Burden n prsecutin t negative any defences raised beynd reasnable dubt Cnsent Authrised s246 (plice) Accident s23 Mistake s24 must be hnest and reasnable belief f cnsent! Kenlin v Gardiner thught plice fficer was a thug! D t raise, prsecutin must prve nt reasnable Intxicatin s 28 Prvcatin s 269 Self-defence s 271 Aiding in self-defence s 273 Insanity s 27 3 years - Cnclusin It is likely/unlikely n the facts that Serius Assault s340 - s 340 (1)(a) - any persn wh assaults anther with intent t cmmit a crime. Assaults Intent t cmmit a crime - S 340 (1)(b) assaults plice fficer, resisting arrest r bstructing an fficer - S 340 (1)(g) assaults a persn ver 60 INSERT ASSAULT ETC HERE INSERT ASSAULT ETC HERE INSERT ASSAULT ETC HERE Serius assault applicable when n injury ccurs (R v Mallard) Burden n prsecutin t negative any defences raised beynd reasnable dubt Defences! Authrised s246 (plice)! Accident s23 DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements! Mistake s24 must be hnest and reasnable belief f cnsent Page 1 f 41

2 Kenlin v Gardiner thught plice fficer was a thug D t raise, prsecutin must prve nt reasnable! Intxicatin s 28! Prvcatin s 269 Penalty! 7 years Cnclusin! It is likely/unlikely n the facts that AOBH s Pick 339 (1) r 339 (2) - S 339 (1) any persn wh assaults anther and thereby des t the persn bdily harm ELEMENTS:! Assault Limb 1 BELOW! Bdily Harm BELOW Defences - BELOW Penalty 7 years cnclusin - S 339 (3) aggravated - any persn wh des bdily harm AND Pretends r is armed with any dangerus weapn Or in the cmpany f 1 r mre peple! ELEMENTS (frm 3 abve) Bdily Harm BELOW Select frm the list abve here (2 ptins armed, grup) Defences - BELOW Penalty 10 years cnclusin Assault s245(1)! LIMB 1 (actual applicatin f frce) a persn wh strikes, tuches r mves, r therwise applies frce f any kind t, the persn f anther applies frce s245(2) heat, light, electrical, gas, dr r anything else that can result in discmfrt either directly r indirectly Crft v Blair use f dg Bdily Harm! S 1 bdily harm is any bdily injury which interferes with health f cmfrt. Pain alne wnt suffice (Scatchard v R) Black eye r bld suffice (Lergesner v Carrll) Injury cvered ver by later event thus cannt prve? (R v Mallard) Defences! Accident s 23 (1)(b) D prves injury was nt freseeable (Objective test) AND accused did nt actually fresee it (Subjective test) DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements Reduces charge t Cmmn Assault! Authrised s246 (plice)! Mistake s24 must be hnest and reasnable belief f cnsent Kenlin v Gardiner thught plice fficer was a thug D t raise, prsecutin must prve nt reasnable! Intxicatin s 28! Prvcatin s 269 Page 2 f 41

3 NEGLIGENTLY CAUSING BODILY HARM s any persn wh unlawfully des any act, r mits t d any act unlawfully (prbably clear n the facts) what is the act dne? - which is it the persns duty t d s 285 duty t prvide necessaries s 286 duty f persn wh has care f a child s 288 duty f persns ding dangerus acts s 289 duty f persns in charge f dangerus things s 290 duty t d certain acts (eg lifesaver) - by which act r missin causes bdily harm S 1 bdily harm is any bdily injury which interferes with health f cmfrt.! Pain alne wnt suffice (Scatchard v R)! Black eye r bld suffice (Lergesner v Carrll)! Injury cvered ver by later event thus cannt prve? (R v Mallard) - Breach Has there been a breach f the duty? Defences! Accident s 23 (1)(b) NOT APPLICABLE under cde cannt apply Accident t negligence based ffences! Cnsent?! Authrised s246 (plice)! Mistake s24 must be hnest and reasnable belief f cnsent Kenlin v Gardiner thught plice fficer was a thug D t raise, prsecutin must prve nt reasnable! Intxicatin s 28! Prvcatin s years - cnclusin UNLAWFUL WOUNDING s a persn wh unlawfully wunds anyne else cmmits a misdemeanur - was the wund cmmitted with INTENT? " g t INJURY WITH SPECIFIC INTENT s 317 Unlawfully (prbably pretty clear) Wund:! It must break the whle f the skin, including the underlayer (R v Da Csta)! Bld nse des nt equal a wund (Lergesner v Carrll??)! Unlikely t be a wund unless it bleeds (Devine v R) Cnsent immaterial (Lergesner v Carrll) Accident s 23 (1)(b) DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements Authrised s246 (plice) Mistake s24 must be hnest and reasnable belief f cnsent! Kenlin v Gardiner thught plice fficer was a thug! D t raise, prsecutin must prve nt reasnable Intxicatin s 28 Self-defence s 271 Aiding in self-defence s 273 Insanity s 27 7 years - cnclusin Page 3 f 41

4 GBH s any persn wh unlawfully des GBH t anther is guilty f a crime - was the GBH cmmitted with INTENT? " g t INJURY WITH SPECIFIC INTENT s ELEMENT: Unlawfully! Will be n dubt clear n the facts GBH! S 1 (a) the lss f a part r an rgan f the bdy! S 1 (b) serius disfigurement! S 1 (c) any bdily injury f such a nature that if left untreated wuld endanger r be likely t endanger, r cause f be likely t cause permanent injury t health, whether r nt treatment wuld have been available. Likely mre prbably than nt OR substantial (Hind v Harwd), ie, gun = likely! Assessed at the time it was inflicted, nt after medial treatment (R v Lbstn) likely t endanger means a real, nt remte chance (Hind v Harwd) Cnsent is immaterial (Lergesner v Carrll) Egg Shell Skull rule take the V as yu find him (s 23 (1)(b)) Accident s 23 (1)(b) DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements Authrised s246 (plice) Mistake s24 must be hnest and reasnable belief f cnsent! Kenlin v Gardiner thught plice fficer was a thug! D t raise, prsecutin must prve nt reasnable Intxicatin s 28 Self-defence s 271 Aiding in self-defence s 273 Insanity s years - cnclusin INJURY WITH SPECIFIC INTENT s any persn wh, with INTENT - intent: shws intentin because (R v Reid) Any f these intents - Fault With any f these harms - Cnduct (a) T maim, disfigure r disable (b) T d GBH r transmit a serius disease (c) T resist r prevent arrest r detentin (d) T resist r prevent public fficer acting in accrdance with lawful authrity Match FAULT here, t CONDUCT " (e) Wunds, des GBH, transmits serius disease (f) Strikes r attempts t strike with prjectile (g) Causes explsin (h) Sends explsive r dangerus r nxius thing, (i) r such causes thing t be taken r received (j) Puts r places crrsive fluid r destructive r explsive substance in a place (k) Casts r thrws such fluid r substance upn any persn Maim is interference with a persn s capacity t fight: (R v Wdward), eg lss f a limb Disfigure = an external injury which detracts frm ne s persnal appearance Disable = create a permanent disability and nt merely a temprary disability GBH SEE ABOVE Wunds SEE ABOVE s 1: serius disease means a disease that wuld if left untreated, be f such a nature as t: (a) cause f be likely t cause a lss f a distinct rgan r part f the bdy (b) cause r be likely t cause serius disfigurement (c) endanger r likely t endanger life r cause r likely t cause permanent injury t health - Cnsent immaterial (Lergesner v Carrll) Accident s 23 (1)(b) DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements Authrised s246 (plice) Mistake s24 must be hnest and reasnable belief f cnsent! Kenlin v Gardiner thught plice fficer was a thug! D t raise, prsecutin must prve nt reasnable Intxicatin s 28 Self-defence s 271 Aiding in self-defence s 273 Insanity s 27 Life - Cnclusin Page 4 f 41

5 TORTURE s 320A - (1) a persn wh trtures anther persn cmmits a crime (2) trtures definitin:! intentinal inflictin f severe pain r suffering can be ne act, r a series. Can be ne ccasin r a number measured with cmmn sense test (2) pain r suffering definitin:! includes physical, mental, psychlgical r emtin, temprary r permanent mental/physical (Bird v Schipper) Intentinal! Must intend t cause the suffering itself (Ping) In this case, he didn't intend t cause the pain and suffering itself, was just punishing him S, wuld have t be getting ff n the trture, fr the sake f the trture itself Accident s 23 (1)(b) DON'T raise accident here, just raise a lack f intent prved by prsecutin n the elements Authrised s246 (plice) Mistake s24 must be hnest and reasnable belief f cnsent! Kenlin v Gardiner thught plice fficer was a thug! D t raise, prsecutin must prve nt reasnable Intxicatin s 28 Self-defence s 271 Aiding in self-defence s 273 Insanity s years - Cnclusin HOMICIDE HOMICIDE s300 - any persn wh unlawfully kills anther is guilty f a crime, which is murder r manslaughter ELEMENTS! Unlawfully S 291 unlawful t kill any persn unless such killing is authrised, justified r excused by law Authrised plice etc Justified s 377 (Plice Pwers act) critical situatins Excused defences r excuses under the cde! Kills S 293 any persn wh causes death f anther, directly r indirectly, by any means whatsever, is deemed t have killed that persn. Causes! Causatin: acts f accused must have cntributed significantly t death.! 3 Steps 1. Operative cause what was the exact cause f death (eg, drwn) 2. Causal cnnectin was the accused causally cnnected t the perative cause f death in 1.? BUT FOR test. Wuld the V had died but fr the actins f the accused? NO cnnectin established 3. Causal respnsibility is the cnnectin in 1 & 2 strng enugh t attribute the cause f the death t the accused? Substantial Cntributin Test: Lking backwards frm the time f death, did the actins f the accused in all the circumstances cause the V t d what they did? (Krakuer where the chick jumped ut windw) Death! Qld is slightly unclear n this issue, but in Bland, the HOL supprts the death f the Brain Stem as being dead. Directly r indirectly s 293 / (indirectly R v Vera Humphries)! S Acceleratin f death (euthanasia)! S 295 threats/intimidatin/deceit frcing smene int fatal act By any means Nvus Actus Interveniens Was there an intervening act that breaks the chain f causatin? Later actr remves the earlier actr f respnsibility (earlier gets less charge) R v Thmas medical treatment Page 5 f 41