ASSAULT DIAGRAM ASSAULT SUMMARY S 61 - Cmmn Assault: Whsever assaults any persn, althugh nt ccasining actual bdily harm, shall be liable t imprisnment fr tw years. ACTUS REUS 1. Unlawful physical cntact (applicatin f frce) - Must be a vluntary act (cannt be missin Fagan but nte flexible use f AR and MR cincidence requirement in that case) - Need nt cause harm r injury (can be spitting see DPP v JWH) - Applicatin f frce can nly give rise t criminal liability if it ccurs withut the ther persn s cnsent (express r implied the circumstance) 2. Act creating apprehensin f imminent unlawful physical cntact - D may be guilty f assault even if n cntact is made with/frce is applied t anther persn - Wrds alne in inapprpriate circumstances can cnstitute assault at cmmn law (Bartn v Armstrng) - Where D creates in V an apprehensin f imminent (immediate) unlawful cntact - Requires a psitive act (Fagan) but there is a brad definitin (see Ireland and Burstw) - IMMINENCE: Knight: Threatening & abusive phne call, absent the ptential fr immediate vilence, did nt cnstitute assault Zanker v Vartzkas: Verbal threat, within the cntext f cntinuing unlawful imprisnment, cnstituted a threat f immediate vilence, cnsequently injury sustained escaping = assault ccasining ABH Ireland & Burstw: Silent phne calls may cnstitute an assault depending n the facts MENS REA P must prve either that D: 1. Intentin: Intended t effect unlawful cntact; r create apprehensins f imminent unlawful cntact; r
2. Recklessness: was reckless as t whether his/her actins wuld effect unlawful cntact; r create apprehensins f imminent unlawful cntact. Subjective! wether D knws culd give V reasnable grund f apprehensin RECKLESSNESS! fresight f a pssibility (negligence insufficient MacPhersn v Brwn) CL: Particular frm f recklessness is inadvertent recklessness. But, als see CA s 4. AGGRAVATED ASSAULTS ss 32-61 Presence f ne f mre factrs Harm caused Harm intended (r inflicted recklessly) Methd used (e.g. weapn) Status f victim (e.g. plice fficer) Setting (e.g. schl, during public disrder, etc) HARM Actual Bdily Harm (ABH) - defined in CL as any hurt r injury calculated t interfere with the health r cmfrt f the prsecutr need nt be permanent but mre than merely transient and trifling (Dnvan); can be a psychiatric illness (Ireland & Burstw). N statutry MR lk t case law. Grievus Bdily Harm (GBH) nn- exhaustive definitin: Crimes Act s 4: the destructin (ther than in the curse f a medical prcedure) f the fetus f a pregnant wman...any permanent r serius disfiguring f the persn...any grievus bdily disease...really serius" (see DPP v Smith; death f a fetus see King). Can be caused by an missin (s 54) degree f negligence same fr manslaughter (R v D) Wunding defined in CL as an injury invlving the breaking r cutting f the interir layer f the skin (dermis) (R v Smith) Wunding r causing GBH requires intent t cause GBH. Misdirectin f intended harm des nt negate the intentin fr the purpses f prving the ffence. Occasining = there must be causatin! assault ccasining ABH is cmmn assault which happens t cause ABH! MR fr that ffence is identical t that f cmmn assault (Zanker) ACCEPTABLE VIOLENCE CONSENT Absence f cnsent an ingredient f criminal respnsibility perates like a defence Aggravated assault w/harm caused cnsent NO defence (Brwn) Accepted exceptins: tatting, male circumcisin, bdy piercing, branding spuse (Wilsn), sprts (Billinghurst), medical prcedure (vitiated by mistake as t nature f act/identity f persn (Richardsn) CHILD DISCIPLINE Crimes Act, s 61AA defence f lawful crrectin; parents entitled t use reasnable and mderate frce t chastise their children ASSAULT CASES Unlawful physical cntact: Fagan v Cmmissiner f Metrplitan Plice [1969] 1 QB 439 (Fagan) Issue: Was there the necessary cincidence f criminal intent with the physical element f the assault, sufficient t cnstitute a crime? Held: N mere missin t act can amunt t an assault. But, physical element f assault regarded as a cntinuing act. Criminal intent frmed during the curse f cntinuing act Apprehensin f imminent unlawful physical cntact: MacPhersn v Brwn: An assault is any act, which intentinally r recklessly causes anther persn t apprehend immediate and unlawful vilence f physical cntact. The mens rea is D s intentin t prduce such a fear/ reckless as t whether their cnduct wuld give rise t such a fear and cntinues anyway. Rzsa v Samuels: A threat made in a way that implies that vilence will be inflicted nly in certain circumstances will meet the definitin f assault based n apprehensin f immediate vilence if the accused had n right t make the cnditin e.g. ging beynd what was reasnable as self- defence. Knight v R (1988) 35 A Crim R 314 (Knight) Issue: Where a phne call in which threats f vilence were made culd cnstitute an assault Held: Distinctin between apprehending immediate vilence (AR f CL assault) and immediately apprehending vilence (perceptin f ptential victim, may r may nt be justified in the circumstances). Victim must reasnably anticipate the threat f frce e.g. if caller lived in a neighburing street. R v Ireland; R v Burstw [1997] 4 All ER 225 (Ireland & Burstw) Issue: Can silent phne calls prve a sufficient threat f immediate vilence t cnstitute and assault? Held: Yes, in certain circumstances they can. Cntext and facts f each case required. Zanker v Vartzkas (1988) 34 A Crim R 11 (SASC) Issue: can a verbal threat cnstitute a threat f immediate vilence? Held: Yes, within the cntext f cntinuing unlawful imprisnment cnsequently, an injury sustained escaping immediately after the verbal threat was sufficient t sustain a charge f assault ccasining ABH.
Mens Rea MacPhersn v Brwn: Recklessness must be a fresight f pssibility; subjective test. R v Cleman: under CL, frm f recklessness required is advertent recklessness. D must realise that a wund r GBH might be inflicted as a cnsequence f his/her cnduct. Culter v R: Nt necessary fr prsecutin t establish a specific intent t cause ABH. R v Williams: Sufficient if D intentinally r recklessly assaults V and ABH is ccasined. Cnsent: t harm Brwn [1994] 1 AC 212 Issue: can cnsensual, sad- maschistic activities that cause ABH/Wunding/GBH give rise t assault? Held: Yes, certain acts are unlawful regardless f cnsent. In this case, drink and drugs were emplyed t btain cnsent. There is als a public risk f spreading HIV/AIDS R v Wilsn [1997] QB 47: degree f injury and dangerus risk branding spuse lgically n different than tatt. Cnsent: vilence in sprt Billinghurst: Participant s cnsent; reasnable be expected, cases which crss the line Stanley: Must be within the bjects f the game/in accrdance with the rules What cnstitutes ABH? R v Dnvan: any hurt/injury calculated t interfere with the health r cmfrt f V. Must be mre than transient/trifling. Need nt be permanent. It is an unlawful act t beat anther persn with such a degree f vilence that the inflictin f bdily harm is a prbable cnsequence and when such an act is prved, cnsent is immaterial. Ireland & Burstw: Can include psychiatric injury, but nt mere emtins (fear, distress, panic). State f mind must be a symptm f an identifiable clinical cnditins, e.g. severe depressin/anxiety disrder. Zanker v Vartzkas: Injuries incurred by V while escaping frm D, caused by D if circumstances cmprising an assault exist (apprehensin f immediate physical vilence) Williams v R: Whether ABH has been ccasined is determined bjectively. What is wunding? R v Smith: An injury t the interir layer f the skin (dermis) withut breaking the uter layer (epidermis) was sufficient fr a wunding. Injury must invlve a breaking f the dermis, breaking f the uter layer f the skin is nt sufficient. Grievus Bdily Harm DPP v Smith [1961] AC 290: Bdily harm held t have its rdinary meaning, and grievus was held t mean really serius. I.e. GBH = bdily injury f a really serius kind. R v King [2003] NSWCCA 399: Killing an unbrn fetus (ther than by medical prcedure) culd be regarded as inflicting GBH n the mther. Assault n law enfrcement fficials Reynhudt (1962) 107 CLR 381: The accused need nt knw the victim was a plice fficer ASSAULT STATUTE Crimes Act 1900 (NSW) Assault Categry NSW Pints t prve Basic (nn- injurius) assault ffence Cmmn law, charged under the Crimes Act 1900 (NSW) s 61 Sme injury/harm Crimes Act s 59 - An assault must be cmmitted by D n V - That ccasins ABH Serius injury/harm Crimes Act s 33 Crimes Act s 35 Crimes Act s 54 4 Definitins Grievus bdily harm includes: (a) the destructin (ther than in the curse f a medical prcedure) f the fetus f a pregnant wman, whether r nt the wman suffers any ther harm, and (b) any permanent r serius disfiguring f the persn, and (c) any grievus bdily disease (in which case a reference t the inflictin f grievus bdily harm includes a reference t
causing a persn t cntract a grievus bdily disease). Offensive weapn r instrument means: (a) a dangerus weapn, r (b) any thing that is made r adapted fr ffensive purpses, r (c) any thing that, in the circumstances, is used, intended fr use r threatened t be used fr ffensive purpses, whether r nt it is rdinarily used fr ffensive purpses r is capable f causing harm. 4A Recklessness Fr the purpses f this Act, if an element f an ffence is recklessness, that element may als be established by prf f intentin r knwledge. 33 Wunding r grievus bdily harm with intent (1) Intent t cause grievus bdily harm A persn wh: (a) wunds any persn, r (b) causes grievus bdily harm t any persn, with intent t cause grievus bdily harm t that r any ther persn is guilty f an ffence. Maximum penalty: Imprisnment fr 25 years. (2) Intent t resist arrest A persn wh: (a) wunds any persn, r (b) causes grievus bdily harm t any persn, with intent t resist r prevent his r her (r anther persn s) lawful arrest r detentin is guilty f an ffence. Maximum penalty: Imprisnment fr 25 years. 35 Reckless grievus bdily harm r wunding (2) Reckless grievus bdily harm A persn wh: (a) causes grievus bdily harm t any persn, and (b) is reckless as t causing actual bdily harm t that r any ther persn, is guilty f an ffence. Maximum penalty: Imprisnment fr 10 years (14 years if in cmpany) (4) Reckless wunding A persn wh: (a) wunds any persn, and (b) is reckless as t causing actual bdily harm t that r any ther persn, is guilty f an ffence. Maximum penalty: Imprisnment fr 7 years (10 years if in cmpany) 54 Causing grievus bdily harm Whsever by any unlawful r negligent act, r missin, causes grievus bdily harm t any persn, shall be liable t imprisnment fr tw years. 59 Assault ccasining actual bdily harm (1) Whsever assaults any persn, and thereby ccasins actual bdily harm, shall be liable t imprisnment fr five years. (2) A persn is guilty f an ffence under this subsectin if the persn cmmits an ffence under subsectin (1) in the cmpany f anther persn r persns. A persn cnvicted f an ffence under this subsectin is liable t imprisnment fr 7 years. 61 Cmmn assault prsecuted by indictment
Whsever assaults any persn, althugh nt ccasining actual bdily harm, shall be liable t imprisnment fr tw years. 61AA Defence f lawful crrectin (1) In criminal prceedings brught against a persn arising ut f the applicatin f physical frce t a child, it is a defence that the frce was applied fr the purpse f the punishment f the child, but nly if: (a) the physical frce was applied by the parent f the child r by a persn acting fr a parent f the child, and (b) the applicatin f that physical frce was reasnable having regard t the age, health, maturity r ther characteristics f the child, the nature f the alleged misbehaviur r ther circumstances. (2) The applicatin f physical frce, unless that frce culd reasnably be cnsidered trivial r negligible in all the circumstances, is nt reasnable if the frce is applied: (a) t any part f the head r neck f the child, r (b) t any ther part f the bdy f the child in such a way as t be likely t cause harm t the child that lasts fr mre than a shrt perid. (3) Subsectin (2) des nt limit the circumstances in which the applicatin f physical frce is nt reasnable. (4) This sectin des nt dergate frm r affect any defence at cmmn law (ther than t mdify the defence f lawful crrectin). (5) Nthing in this sectin alters the cmmn law cncerning the management, cntrl r restraint f a child by means f physical cntact r frce fr purpses ther than punishment. (6) In this sectin: child means a persn under 18 years f age. parent f a child means a persn having all the duties, pwers, respnsibilities and authrity in respect f the child which, by law, parents have in relatin t their children. persn acting fr a parent f a child means a persn: (a) wh: (i) is a step- parent f the child, a de fact partner f a parent f the child, a relative (by bld r marriage) f a parent f the child r a persn t whm the parent has entrusted the care and management f the child, and (ii) is authrised by a parent f the child t use physical frce t punish the child, r (b) wh, in the case f a child wh is an Abriginal r Trres Strait Islander (within the meaning f the Children and Yung Persns (Care and Prtectin) Act 1998), is recgnised by the Abriginal r Trres Strait Islander cmmunity t which the child belngs as being an apprpriate persn t exercise special respnsibilities in relatin t the child. BACKGROUND OF ASSAULT Scial cntext: e.g. sprt, parents, schl basic assault ffence (s 61) max penalty f imprisnment 2 yrs 5 yrs basic larceny ffence (s 117) and malicius damage t prperty (s 195) rise in reprting f dmestic assault Legal categries: assault (assault and battery) still a distinctin between the tw! assault: putting anther persn in fear r apprehensin f an unlawful cntact battery: actual applicatin f frce withut cnsent Statistics cmmn assault - secnd mst cmmn ffence prsecuted in Lcal Curts in 2007 imprisnment a less frequent utcme Patterns f victimisatin Rethinking Law & Order R Hgg & D Brwn vilence amng men! interpersnal vilence; excessive use f alchl vilence amng family members! inequalities f pwer and strength; bund up in intimate relatinships; unemplyed/receiving welfare marginalisatin and vilence in Abriginal cmmunities! due t under- emplyment, vercrwded husing, bad health standards, high levels f alchlism, limited educatinal pprtunities fr the yung! lead t sense f hpelessness and alienatin,! als due t legacy f gvernment plicies f dispssessin, frcible resettlement, segregatin and the breaking up f families and cmmunities e.g. by systematic remval f children