Criminal Assault PDF

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criminal assault notes ...

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Criminal Assault: - Prevalence of assault charges - Only to prove one of the AR

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(s61) – Common Assault – Crimes Act 1900 Whosoever assaults any person, although not o’ ccasioning actual bodily harm, shall be liable to imprisonment for two years.

AR – two options: 1. Unlawful physical contact (old form battery) 2. Act creating apprehension of imminent unlawful physical contact (old form assault) 1 Must be voluntary act 2 This act must cause harm 3 Application of physical force/ conduct Must be an absence of consent – implied consent s 61HA(2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees AR2 = where D creates in V an apprehension of imminent (immediate) unlawful contact • Often known as a ‘psychic’ assault • Requires a positive act (Fagan) – gestures, words - Must be apprehension of immanent apprehension of fear (Knight: immediate physical assault) (Zarker: continuing fear; imminence – fear doesn’t have to have happened – apprehension of violence

MR = Intention or recklessness – MacPherson v Brown Intention to cause fear/conduct (Macpherson v Brown) – recklessness subjective test - Prove prability

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Aggravated Assaults (ss32-61): Personal violence crimes where the assault is ‘aggravated’ by: – Harm caused – Harm intended (or inflicted recklessly) – Method used (eg weapon) – Status of victim (eg police officer) – ‘Setting’ (eg school or during ‘public disorder’) 15

Assault occasioning actual bodily harm (s59): (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 Reckless Grevious Bodily Harm (s 35 (2): (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years. ACCEPTABLE VIOLENCE: CONSENT • Exceptions: tattooing, male circumcision, body piercing • Branding spouse’s buttocks - akin to tattooing (Wilson) (cf S&M?) • Sport (eg boxing, rugby) • Consent to medical procedure – only vitiated if mistake as to nature of the act or identity of person doing it (Richardson) • ‘Lawful correction’ of children: Crimes Act 1900 s 61AA

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out to have forseen rather than what the defendant actually foresaw...