Assault and injuries based note PDF

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Assault and other non-fatal offences against persons “Assault Based” offences Common Element: Unlawfu s246(1) An assault is unlawful and constitutes an offence l unless it is authorised or justified or excused by law. Assault

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“authorised” a policeman in execution of his/her duty; “justified” would be self-defence and; “excused” would be the defence of accident.

S245(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault

IF HAVE ACTUALLY PHYSICAL TOUCHING LIMB 1 The actual application of force ELEMENTS (a) the striking, touching, moving of, or application of force of any kind to the person of another; (b) either directly or indirectly; (c) without the other person's consent or with consent, if the consent is obtained by fraud; Section 245(2) goes on to further define “applies force” as including; (a) “the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort” Case: Croft v Blair Fact: the accused induced his dog to bit someone. Case: Fagan Fact: The defendant, Mr. Fagan, was in his car when a police officer approached him and told

NO ACTULLY APPLY FORCE LIMB 2 an attempt or threat to apply force ELEMENTS (a) any bodily act or gesture; (b) attempting or threatening to apply force of any kind to the person of another; (c) without the other person's consent; (d) in circumstances where the person making the attempt or threat has, actually or apparently, a present ability to effect that purpose. (a) Words alone not enough however the words or threat may be what gives a bodily movement the character of a threatening act or gesture. Case: Hall v Fonceca [1983] WAR 309 The accused watch and shake his finger and move his right hand and raise his right arm and the threat is followed. Case: R v Aguis The accused hand over the note (please matter of life and no one gets hurt). The threat implicit in the words on the note did not convert the act or gesture of handing over the note into the act by which force was threatened to be applied. The contents of the note did not convert the act in question into one by means of which a threat was to be effected. (d) attempt or threat by bodily act or gesture to apply force with the actual or apparent present ability.

him to move his car. In accordance with the directions, Fagan backed his car up, accidentally rolling it onto the foot of the officer.

Case: Brady v Schatzel Unloaded gun No need to have the ability to carry out the act. The victim in mind believe that the accused has the ability is sufficient. Case: Zanker v Vartzokas Fact: on the car. The delay between the threat and the assault. The accused threat that he want to take the victim to the friend house. (d) But ‘present ability’ does not mean an apprehension of immediate personal violence. (Secretary (1996) 86 A Crim R 119)

Case: Secretary Fact: The victim killed her husband while sleeping as her husband threat that he will kill her after he wake up. Common Element: (c) without the other person's consent Consent can be express, implied or tacit - Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117 Not assault if it were necessary for common intercourse of life: - Horan and Ferguson (1994) QCA 375 - Boughey v R (1986) 161 CLR 10 The issue of consent can be relevant to assault occasioning bodily harm. If there was consent to the assault the relevant question becomes whether the degree of violence used exceeded that which consent was given for (Lergesner v Carroll [1991] 1 Qd R 206). Consent Will raise defence of mistake of fact.

Common Assault – Section 335 s335 Any person who unlawfully assaults another is guilty of a misdemeanour and is liable, if no greater punishment is provided, to imprisonment for 3 years. ELEMENTS NB s335(2) circumstance of aggravation legislated in s108B Penalties and Unlawfully Sentences Act: if offender commits an offence while adversely affected by + intoxicating substance, in a public place Assaults Assault Occurring Bodily Harm s339(1) Any person who unlawfully assaults another and thereby does him bodily harm is guilty of a crime and is liable to imprisonment for 7 years. s1 “Bodily harm” is defined as “any bodily injury which interferes with health or comfort” Case: Scatchard v R A sensation of pain alone without an identifiable bodily injury was not sufficient to constitute bodily harm (have to able to see the injury) Case: R v Chan-Fook Bodily harm includes psychiatric injury arising from an identifiable clinical condition, however this does not include emotions such as fear or distress. Case: Lergesner v Carroll Black Eye and bloody nose (Broken nose is not GBH) s339(3) Circumstances of aggravation - If offender armed, pretended to be armed, or was in company, max 10 years ELEMENTS Unlawful + Assault + Does bodily harm

s339(4) Further circumstance of aggravation legislated in s108B Penalties and Sentences Act: if offender commits an offence while adversely affected by intoxicating substance, in a public place

Serious Assaults (Printed s340) s340(1) Any person who assault with intent to commit a crime (a)or with intent to resist or willfully obstruct a police officer acting in the execution of the officer’s duty (b) or unlawfully assaults any person who is ag 60 years or more (g) or unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device (h) is guilty of a crime. NB – circumstances of aggravation if: - participant in a criminal organisation and assaults a police officer (14years) - per s108B PSA intoxicated in a public place at time of committing the offence - assaults a working corrective services officer “Injury Based” offences Common Elements Unlawful ‘Unlawful’ means ‘prohibited by law’ or ‘not excused’: Houghton v R [2004] WASCA 20

Wounding S323 (1) A person who unlawfully wounds anyone else commits a misdemeanour. ELEMENTS Unlawful + Wound

Common law: breaking of the true skin including the underlayer: R v Da Costa [2005] QCA 385; Devine v R (1983) 2 A Crim R 45 Common law definition adopted under Criminal Code (Qld): Jervis (1993) 56 A Crim R 374 Consent immaterial: Lergesner v Carroll [1990] 49 A Crim R 51

Unlawful Causing GBH s320 Any person who unlawfully does grievous bodily harm to another is guilty of a crime and is liable to imprisonment for 14 years. ELEMENTS Unlawfully + Grievous bodily harm NB (3A) The PSA, s108B also states a circumstance of aggravation for an offence against this section Section 108B – intoxication is an aggravating circumstance Grievous Bodily Harm

Definition is found in s1. It means: a) the loss of a part or an organ of the body; or b) serious disfigurement; or c) any bodily injury of such a nature that if left untreated would endanger or be likely to endanger, or cause or be likely to cause permanent injury to health. ‘whether or not treatment is or could have been available’: - the severity of the injury is to be assessed at the time the injury is inflicted

and without reference to any medical treatment: R v Lobston [1983] 2 Qd R 720; recently addressed in R v Lovell; Ex Parte Attorney-General (Qld) [2015] QCA 136; note also R v Chan-Fook [1994] “likely to endanger” has been held to mean “a substantial- a real not remote”- chance (Hind and Harwood v R (1995)80 A Crim R 105) Consent immaterial: Lergesner v Carroll [1990] 49 A Crim R 51

GBH with INTENT to cause GBH Section 317 (1) – max- life imprisonment Any one of these intents With any one of these harms (unlawful) (a) To maim, disfigure or disable (e) Wounds, does GBH, transmits serious disease (b) To do gbh or transmit a serious disease (f) Strikes or attempts to strike with projectile (g) Causes explosion (c) To resist or prevent arrest or detention (h) Sends explosive or dangerous or noxious thing, (d) To resist or prevent public officer acting in accordance with lawful authority (i) or such causes thing to be taken or received ‘Maim’ is interference with a person’s capacity (j) Puts pr places corrosive fluid or destructive or to fight: R v Woodward [1970] QWN 30 explosive substance in a place “Disfigure” = an external injury which detracts (k) Casts or throws such fluid or substance upon any from one’s personal appearance, and person “Disable” = create a permanent disability and not merely a temporary disability

s317 covers intentional transmission of a serious disease. Definition of ‘serious disease’ found in s1: ..a disease that would, if left untreated, be of such a nature as toa) cause or be likely to cause any loss of a distinct part or organ of the body; or b) cause or be likely to cause serious disfigurement; or c) endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health But Crown must prove intent: R v Reid (2006) QCA 202 and see also R v Zaburoni [2014] QCA 77

Torture s320A (1) A person who tortures another person commits a crime. ELEMENTS Tortures (2) In this section-- pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent. torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion. Crown must prove intent: Ping [2005] QCA 472 Crown must prove severe pain or suffering: section introduced as a response to a particular case R v Griffin [1998] 1 Qd R 659 See R v Williamson [2012] QCA 139 – exemplifies that this section was intended to cover domestic abuse, especially against women and children. 315 -

Disabling in order to commit indictable offence

Any person who, by any means calculated to choke, suffocate, or strangle, and with intent to commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for life. 315A CHOKING, SUFFOCATION OR STRANGULATION IN A DOMESTIC SETTING (1) A person commits a crime if— (a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and (b) either— (i) the person is in a domestic relationship with the other person; or (ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012. Penalty: Maximum penalty—7 years imprisonment. (2) An assault is not an element of an offence against subsection (1)....