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John assaulted Ronnie with a pool stick with an intention to cause serious injury, john is charged with causing serious injuries intentionally under section 16 of Crimes Act 1958(vic). 1 Section 16 Crimes Act 2 defined as “A person without law full excuse, intentionally causes serious injury to another person is guilty of indictable offence”.3This is a level 3 punishment and imprisonment up to 20 years. Intention The act of John caused serious injury, he was enraged by the act of Ronnie and reacted violently and voluntarily. The intention of the john is clearly understandable by his words “am going to hospitalize you today”, mere intention of the act does not constitute to offence: Westaway v R. 4 It is the intention to cause serious injury which distinguishes offences under s16, 17 and 18 Crimes Act. 5 “The attack is unplanned but spontaneous and apparently motiveless does not reduce its seriousness nor negate intention but it is a matter which can be taken in to consideration while sentencing”. 6 John enraged that Ronnie had made a pass at Yoko, although it’s a spontaneous act it doesn’t change the seriousness of the act Murray v R.7 “Section 410 crimes Act 1958(vic) 8 does not place the burden on the (accused) to prove the he or she acted with lawful excuse”9: R v Roach and Heath 10.However in this case if John seeks to rely on lawful excuse, there’s an evidentiary burden on John to elicit evidence which legitimately raises the issue of lawful excuse. But John has no evidence to prove Lawful excuse (not an act of self-defense) “Mere recklessness does not constitute the necessary intention” 11: R v YUGOVIC .12 1

“The capacity of the person while performing the act is necessary to consider while proving the intention of the accused”13: R v O'Connor 14.” where an accused was, on the evidence under the influence of the alcohol at the relevant time, it is necessary that the trail judge bring to the jury’s attention the facts surrounding the incident and direct the jury that they consider those facts including the question of intoxication of the accused, in order to decide whether the necessary intent has been proved “15: R v Williams16. 11 Crimes Act 1958(vic) s16. 2

Crimes Act 1958(vic) s16. LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person [ss 15-34A]. 4 Westaway v R (1991) 52 A Crim R 336 CB. 5 Crimes Act 1958(vic) s16,17,18. 6 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person [ss 15-34A]. 7 Murray v R [2019] NSWCCA 235; BC201908807 CB 8 Crimes Act 1958(vic) s410. 9 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person [ss 15-34A]. 10 R v Roach and Heath [1988] VR 665 CB. 11 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 12 R v YUGOVIC [1971] VR 816. 3

In this case whether John is in state of intoxication at the time of the act has to be determined, if the evidence proves that john is intoxicated in such a level that he cannot make a decision at the time of act, the mental element required for proving this offence may not be sufficient. Lawful excuse “It is not a lawful excuse, if the jury is satisfied that the accused has no lawful justification for what she/he did”17: R v Spartels 18. “The accused has to raise evidence as to lawful excuse”19. “The surgeon conducting operation not honestly believing that the operation is benefit for the patient’s health, or in a circumstances the patient, through consenting to the operation, has not been advised in terms of its nature, may constitute an offence under s 16 of Crimes Act” 20: Reeves v R.21 Ex: In case of lawful sport like Professional boxing Self defence Lawful excuse may include self-defense, duress and coercion. The amount of force which may be used for the assault is limited. “The law permits the person so assaulted to resist and escape if he can by the exercise of a corresponding amount of force to that used in such an assault…”22: R v Ryan.23

“A deadly weapon may be used in self-defense, because the fear of serious injury against an attack, the facts must justify the jury that the accused had a reasonable fear of serious injury” 24: R v Nicolaisen 25. 2

Unconscious Act

“Where a person irrationally attacks another person, there was evidence before the Court that the accused suffering with mental illness, the accused may be acquitted. The burden is on the accused to prove that, when the accused did the act which caused injury he was doing it unconsciously” 26: R v Charlson 27. In this case John assaulted with rage towards Ronnie with motive, a person suffering with mental illness cannot act with a motive.

213 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 14

R v O'Connor(1980) 146 CLR 64; 29 ALR 449 Case Base document for this case at CLR 88; Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 16 R v Williams [1987] 3 All ER 411; (1987) 78 Cr App R 276 17 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 18 R v Spartels [1953] VLR > [1953] VLR 194 19 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 20 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 21 Reeves v R (2013) 304 ALR 251. 22 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 23 R v Ryan (1890) 11 LR (NSW)(L) 171 24 LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 25 R v Nicolaisen (1958) 76 WN (NSW) 71 CB25. 15.

Conclusion John assaulted Ronnie with a pool stick with an intention to cause serious injury, without any lawful excuse. Prosecution has to prove before the Court that the act was done consciously with an intention to cause serious injury. This is not an act of self-defense as John initiated attacked with an intention of causing serious injury. Question 2 Paul assaulted Ronnie with a billiard Ball recklessly. Paul is charged with causing serious injury recklessly under section 17 Crimes act 1958(vic). 28 Section 17 Crimes Act 195829 is defined as “A person who, without lawful excuse, recklessly causing serious injury to another person is guilty of an indictable offence, Level 4 penalty imprisonment up to 15 years maximum”.30 The difference between section 16 and 17 of crimes Act 31 is intention, Paul caused serious injury recklessly without any lawful excuse: R v Crabbe (1985) 156 CLR 46432.”In deciding the recklessness, the jury must be directed in terms of knowing that serious injury will probably occur, not 3 that “serious injury might occur”.33 Recklessness “

It is sufficient that the Paul acted with the requisite awareness or foresight of the consequence of causing some harm to Ronnie34”: R v Lovett.35 The recklessness need not be directed to the person who suffers the injury or to the particular area of the body where he intended to cause injury” 36: see R v Latimer (1886) 17 QBD 359.37 For the purpose of deciding the state of mind of the Paul, the jury can draw inferences from the evidences regarding all the surrounding circumstances; R v Jensen and Ward [1980] VR 194. 38 Example for recklessness.

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LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. R v Charlson [1959] 1 All ER 859. 28 Crimes Act 1958(vic) s 17. 29 . Crimes Act 1958(vic) s 17. 30 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 31 Crimes Act 1958(vic) s 16 & 17. 32 R v Crabbe (1985) 156 CLR 464. 33 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 34. Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 35 R v Lovett [1975] VR 488 CB. 36 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 37 R v Latimer (1886) 17 QBD 359. 38 R v Jensen and Ward 1980] VR 194. 39 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 40 R v Clarence (1888) 22 QBD 23. 27

“A person who knowing that he or she suffering from serious sexual disease recklessly transmits to another through consensual sexual intercourse may properly be convicted of causing serious injury recklessly”39: R v Clarence (1888).40 Lawful excuse Self-defense and issues of consent may be the lawful excuses. In this case it is not an act of selfdefense as Paul decided to scare Ronnie and assaulted him accordingly. Conclusion Paul assaulted Ronnie by recklessly causing serious injury without lawful excuse, he was charged with section 17 Crimes Act 1958.41 Question 3 George, Gilmour and waters are charged with kidnapping under section 63A Crimes Act 1958. 42

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Section 63A crimes Act 1958(vic) 43 defines as “Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 punishment and imprisonment up to 25 years maximum”.44 Intention George and his mates had taken way Keith from a place with an intention to take revenge against Keith, element of intention is present in his act: R v Robson and Collett [1978] 1 NSWLR 73 CB. 45 “It is not necessary for the prosecution to establish that any demand or threat was in fact made”46: R v Austin.47

439 Lexis Nexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the person[ss15-34A]. 40

R v Clarence (1888) 22 QBD 23. Crimes Act 1958(vic) s17. 42 Crimes Act 1958(vic) s63A. 43 Crimes Act 1958(vic) s 63A. 44 Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A]. 45 R v Robson and Collett [1978] 1 NSWLR 73 CB. 46 Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A]. 47 R v Austin(1988) 49 SASR 108. 48 Davis v R[2006]. 49 Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A]. 50 R v Jackson [1891] 1 QB 671. 41

The difference between kidnapping and false imprisonment is taking away, it needs not to be significant time or distance: Davis v R.48 Examples for kidnapping “A husband can kidnap a wife”49: R v Jackson.50 “A father can be guilty of kidnapping his own child”51: R v D52.

“It is not necessary that force be used to cause the victim's removal from one place to another, nor is it necessary that the victim be taken to the place where the accused intended to take him: R v Wellard.53 The accused was there held properly convicted of kidnaping where, as a result of falsely representing that he was a police officer, he persuaded a girl to walk with him some 100 yards to a roadway and instructed her to enter a car which she did but before he could drive away with her, her boyfriend and some friends arrived and helped her from the car”. 54 5

In the cases of too young child, the consent of parent or guardian is required to take the child away from his/her place: R v D.55

In the case of 13 year’s old girl/boy, taking away boy/girl with the consent of them but without the consent of the parents or guardian does not constitute kidnapping: R v Hale.56

Conclusion George and his mates taking away or secreting Keith, without the consent of the him and with an intention to gain advantage amounts to kidnapping under section 63A Crimes Act 1958. 57 George and his committed indictable offence, imprisonment up to 25 years(level offence). 548Davis v R[2006] 49

Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A] 50 R v Jackson [1891] 1 QB 671 51 Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A] 52

R v D [1984] AC 778; 2 WLR 112; 1 All ER 578 R v Wellard. 54 Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A]. 55 R v D [1984] AC 778; 2 WLR 112; 1 All ER 578 CB 56 R v Hale [1974] QB 819 57 Crimes Act 1958(vic) s 63A. 53

Question 3 Introduction Ringo unlawfully detains his wife Barbara (without a lawful excuse) in his room. Though they both are wife and husband, detaining her without her consent results in false imprisonment. False imprisonment is a common law offence. “According to common law unlawfully and deliberately detaining a person without his/her will and consent results in false imprisonment”58: Emmett v Lyne.59 “The offence is made out if a person is detained in consequence of threats, whether or not those threats relate to the person detained or to another”.60 R v Garrett .61 “The detainment may be result of fraud or trick”62it must result in total deprivation of the liberty of the victim: Bird v Jones.63 Even though the victim unaware of the fact that she/he has been detained, still the accused may be charged with false imprisonment: Meering v Grahame-White Aviation Co Ltd. 64 If a parent detains a child above reasonable time or circumstances (not a reasonable parenting discipline for a normal person) it amounts to false imprisonment: Rahman (1985) .65 6

Conclusion Ringo unlawfully detains his wife without her will and consent and confronts her about his money, when Barbara decides to leave the room, he locks the room, restrains her liberty to move out and threatens her that she will be locked until she admits the offence of stealing. Ringo committed offence of false imprisonment, maximum punishment up to 10 years of imprisonment.

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657 Crimes Act 1958(vic) s 63A. 58

Lexis Nexis Halsbury's Laws of Australia>130 — Criminal Law II >ASSAULT AND RELATED OFFENCES(2) (at 14/09/2020) FALSE IMPRISONMENT AND KIDNAPPING. 59 Emmett v Lyne (1805) 1 Bos & PNR 255; 127 ER 459. 60 Lexis Nexis Halsbury's Laws of Australia>130 — Criminal Law II >ASSAULT AND RELATED OFFENCES(2) (at 14/09/2020) FALSE IMPRISONMENT AND KIDNAPPING. 61 R v Garrett (1988) 50 SASR 392 ; 40 A Crim R 213. 62 Lexis Nexis Halsbury's Laws of Australia>130 — Criminal Law II >ASSAULT AND RELATED OFFENCES(2) (at 14/09/2020) FALSE IMPRISONMENT AND KIDNAPPING. 63 Bird v Jones (1845) 115 ER 668. 64 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44. 65 Rahman (1985) 81 Cr App R 349, CA.

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Bibliography LexisNexis, Halsbury's Laws of Australia, (at 12 oct 2020) Subdivision (4) Offences against the persons [ss15-34A]. Lexis Nexis, Halsbury's Laws of Australia, (at 13 oct 2020) DIVISION 1 OFFENCES AGAINST THE PERSON [ss 3-70AA] > subdivision (9A) Kidnapping [s 63A]. Lexis Nexis Halsbury’s Laws of Australia>130 — Criminal Law II >ASSAULT AND RELATED OFFENCES(2) (at 14/09/2020) FALSE IMPRISONMENT AND KIDNAPPING

Cases

Westaway v R (1991) 52 A Crim R 336 CB. Murray v R [2019] NSWCCA 235; BC201908807 CB R v Roach and Heath [1988] VR 665 CB. R v YUGOVIC [1971] VR 816 R v O'Connor(1980) 146 CLR 64; 29 ALR 449 CB CLR 88

R v Williams [1987] 3 All ER 411; (1987) 78 Cr App R 276 R v Spartels [1953] VLR > [1953] VLR 194 Reeves v R (2013) 304 ALR 251 R v Ryan (1890) 11 LR (NSW)(L) 171 R v Nicolaisen (1958) 76 WN (NSW) 71 CB25. R v Charlson [1959] 1 All ER 859. R v Crabbe (1985) 156 CLR 464. R v Lovett [1975] VR 488 CB. R v Latimer (1886) 17 QBD 359. R v Jensen and Ward 1980] VR 194. R v Clarence (1888) 22 QBD 23. R v Robson and Collett [1978] 1 NSWLR 73 CB R v Austin(1988) 49 SASR 108. Davis v R[2006] UKHL 36[1] R v Jackson [1891] 1 QB 671 R v D [1984] AC 778; 2 WLR 112; 1 All ER 578 R v Wellard [1978] 1 WLR 921, [1978] 3 All ER 161

R v D [1984] AC 778; 2 WLR 112; 1 All ER 578 CB R v Hale [1974] QB 819 Legislation Section 16,17 and 63A of Crimes Act 1958(vic) Section 410 crimes Act 1958(vic) False imprisonment, Common Law Offence

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