Non Fatal Offences Criminal Law PDF

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Non lethal offences brief overview...

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Non-Fatal offences Assault Criminal Code Act 1899 (Qld) Section 245(1) – Definition 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. -

There are two separate limbs under the definition of assault under S245(1) o Battery at common law o Assault at common law

Assault Limb 1 - Battery Elements - A person, - Applies force - Directly or indirectly - Without consent A Person

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The status of the offender and whether he is a person.

Applies force – Criminal Code Act 1899 (Qld) Section 245(2) Applies force include 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. Intention Criminal Code Act 1899 (Qld) Section 23(2)

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Unless the intention to cause a result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

R v McIver (1928) 22 QJPR 173

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Supreme Justice Macrossan

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Assault, involving actual application of force, implies intention.  

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Not an offence of specific intention, regardless of intention, a technical assault would arise whenever there is an application of force. Assault must be unlawful and because of the way in which the consent requirement in the definition of assault has been construed.

A threat or attempt to apply force, requires proof of intention,

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Threats and attempts are calculated actions.

Directly or Indirectly Directly

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Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; (1969) 52 Cr App R 700

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Drove car onto a policeman’s foot, deliberately delayed removing his car.

Indirectly - Croft v Blair (1989)

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Dog was used “as a weapon”, regarded as applying force indirectly, or bodily act or gesture attempting or threatening to apply force under such circumstances that the accused actually or apparently had a present ability to affect his purpose.

Without consent

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Kimmorley v Atherton; Ex Parte Atherton [1971] Qld R 117

o o o o o

Two accused photographed each other in the act of kissing the victim.

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Held that no assault was committed.

Victim had consented to being photographed, but not being kissed. Convicted of assault Consent may be express, or it may be implied or tacit. In normal circumstances, being a man kissing a woman or a youth kissing a girl, it is important to bear in mind that consent is far more likely to an implied or tacit consent rather than express. Implied consent to come degree to non-violent contact in some circumstances. Avoids criminal responsibility for inadvertent contact that occurs during everyday life.

Level of force can be consented

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Lergesner v Carroll [1991] 1 Qd R 206

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Considered that consent was a defence to assault occasioning bodily harm The issue for the tribunal of fact was whether the degree of violence to the person assaulted exceeded that to which consent was given.

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McNamara v Duncan (1971) 26 ALR 584

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The defendant deliberately struck the plaintiff during a game of AFL. The plaintiff had just kicked the ball, but the defendant continued to run at him and hit him on the head, fracturing his skull.

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This is an infringement of the rules to a serious extent. It was argued that there was implied consent to a little bit of foul play in the game

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The plaintiff did not consent to receive a blow, contrary to the rules of the game, even though it may be known that such acts may and probably will occur.

Assault Limb 2 Elements - A person, - Attempts or threatens to apply force - By bodily act or gesture - With actual or apparent present ability to effect purpose - Without consent Attempts or threatens to apply force Criminal Code Act (1899) Qld Section 4(1)

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When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

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Hall v Fonceca [1983] WAR 309

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Act was in self-defence and used no more force than was necessary Argued that the man could retreat from the fight Plaintiff must prove that the defendant intended to create the apprehension of battery/use of force

Bodily act/gesture Mere words can never amount to an assault. Must be some bodily act or gesture associated with the words indicating an intention of assault, or which an ordinary person might construe as indicating such an intention.

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Fogden v Wade [1945] NZLR 724

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Appeal on a case in which the appellant was accused for assault on the complainant At the time, no assault had been established Stated that while there was an intention, no action was made therefore no assault However, based on the circumstantial evidence; but for the complainant’s actions it could be reasonably assumed that the assault would have occurred. Mere words are insufficient

Brady v Shatzel [1911] st R Qd 206; [1911] QWN 45; (1911) 5 QJPR 155

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Assault committed by presenting a loaded firearm at another, or by presenting an unloaded firearm at another where the accused pretends that it is loaded.

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Apparent ability to carry out the assault.

Police v Greaves [1964] NZLR 295

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A threat was made by a person holding a knife that he would stab another person if that other person came any closer.

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Conditional threat, did not commit the offense but had an apparent ability to do so

R v Dale [1969] QWN 30

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the accused in that case had a ruler stuck under his jumper and demanded money from a shopkeeper, stating “This is a stick-up”.

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Held that in those circumstances the combination of the ruler under the jumper and the words, “This is a stick-up” sufficient basis to find him guilty of assault with intent to steal

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There was a threat together with an apparent ability to affect the offender’s purpose.

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Rozsa v Samuels [1969] SASR 205

o o o o

Plaintiff threatened to punch defendant for cutting in line

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Held that, defendant’s action was excessive and liable for assault.

Defendant responded by pulling a knife out, saying ‘I will cut you to bits if you try’ Moved to get out of the vehicle. Was a conditional threat, defendant would not have carried out the offence if the plaintiff did not hit him.

Actual or apparent present ability to effect purpose

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Actual ability

o o -

A gun, known to be loaded by the victim A knife

Apparent present ability

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Accused has a gun that is not loaded or a replica weapon R v Everingham (1949) 66 WN (NSW) 122    

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Fear is not a requisite to assault 

o o

Need not be able to execute threat Offence is the effect that is created in the victim’s mind Offender points a harmless toy pistol at the victim, who believes it’s real Charges with assault. Brady v Schatzel [1911]

Present in ‘present ability’ R v Secretary (1996) 5 NTLR 96; 107 NTR 1        

Accused shot and killed victim in his sleep Victim was abusive husband Claimed to have shot him in self-defence Prior to him falling asleep, verbally threatened and accused the defendant She perceived this as a threat to kill her based on his violent behaviour Victim, at the time had present ability, either actually or apparently, to effect the purpose when the stipulated time came, when he awoke. Held that threat had not been withdrawn and, therefore, continued while he slept. The threat need not be of immediate harm.

Assault occasioning bodily harm Criminal Code Act 1899 (Qld) Section 339 – Definition Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime.

Elements - Person - Unlawfully - Assaults - Does bodily harm Unlawfully Criminal Code Act 1889 (Qld) Section 246(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

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Is the act authorised, justified or excused by law?

Assaults Refer to Assault

Does Bodily Harm - Criminal Code Act 1899 (Qld) Section 1

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Bodily harm means any bodily injury which interferes with health or comfort.

Lergesner v Carroll [1991] 1 Qd R 206

o o

Must be some identifiable bodily injury Consent to assault occasioning in bodily harm is possible

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Question of fact is what degree of violence was consented to

R v Scatchard (1987) 27 A Crim R 136

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Mere sensation of pain is not sufficient

Serious Assaults Criminal Code 1899 (Qld) Section 340 – definition Any person who— (a) assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of himself or herself or of any other person; or (b) assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting; or (c) unlawfully assaults any person while the person is performing a duty imposed on the person by law; or (d) assaults any person because the person has performed a duty imposed on the person by law; or (f) assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; or (g) unlawfully assaults any person who is 60 years or more; or (h) unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device; is guilty of a crime.

Grievous Bodily Harm Criminal Code 1899 (Qld) Section 320 (1) Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years.

Elements - Any person - Unlawfully - Does GBH Does Grievous bodily harm Criminal Code 1899 (Qld) Section 1 grievous bodily harm means— (a) the loss of a distinct 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 life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

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R v Lobston [1983] 2 Qd R 720

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I propose to direct the jury that the question of grievous bodily harm, whether it was caused, is a matter for them, but in deciding what does amount to bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health, they look at the nature of the injury itself and not the surrounding circumstances and the availability of medical evidence.

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Availability of medical treatment not relevant

Tranby (1991) 52 A Crim R 228

Intent - Not an element of S320 - But causation must be proven - Can “do” grievous bodily harm by direct act or; - By failure to perform a duty listed under Chapter 27 of the Criminal Code - R v Clark [2007] QCA 168

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Complainant was visiting Cape Tribulation Suffered permanent and disabling injuries when she fell 20 metres from a platform of a "flying fox" ride operated by Jungle Surfing Canopy Tours.

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The complainant's injuries included brain damage and fractures of her ribs and pelvis.

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It was admitted by the appellant that the complainant had suffered grievous bodily harm because of her fall

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Failed his duty imposed on him under section 289 of the Criminal Code

Unlawful Wounding Criminal Code 1899 (Qld) Section 323(1) A person who unlawfully wounds anyone else commits a misdemeanour.

Elements - Any person - Unlawfully - Wounds another Wounds another - No definition in the Criminal Code - Requires a breaking of the true skin

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R v Devine (1982) 8 A Crim R 46

Torture Criminal Code 1899 (Qld) Section 320A (1), (2) (1) A person who tortures another person commits a crime. (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.

Elements - A person - Tortures

o o o -

Intentionally Inflicts severe pain on another person By acts done on 1 or more than 1 occasion

R v Geddes [1999] 130 QLD 122

Negligence Causing bodily harm Criminal Code 1899 (Qld) Section 328 (1) Any person who unlawfully does any act, or omits to do any act which it is the person’s duty to do, by which act or omission bodily harm is actually caused to any person, is guilty of a misdemeanour, and is liable to imprisonment for 2 years.

Elements - Any Person - Unlwafully - Does or omits to do - Act which it is the person’s duty to do, - Caused bodily harm to another Act which it is the person’s duty to do Refer to Chapter 27 of the Criminal Code

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R v Clark [2007]

Unlawful Stalking Criminal Code 1899 (Qld) Section 359B Unlawful stalking is conduct— (a) intentionally directed at a person (the stalked person); and (b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and - Immaterial whether the Protracted conduct consists of the same or different acts S359C(3) of the Code (c) consisting of 1 or more acts of the following, or a similar, type— (i) following, loitering near, watching or approaching a person; (ii) contacting a person in any way, including, for example, by telephone, mail, fax, email or using any technology; (iii) loitering near, watching, approaching or entering a place where a person lives, works or visits; (iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person; (v) giving offensive material to a person, directly or indirectly; (vi) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence; (vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

(d) that— (i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

Criminal Code 1899 (Qld) Section 359C – immaterial for unlawful stalking (1) For section 359B(a), it is immaterial whether the person doing the unlawful stalking— (a) intends that the stalked person be aware the conduct is directed at the stalked person; or (b) has a mistaken belief about the identity of the person at whom the conduct is intentionally directed. (2) For section 359B(a) and (c), it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person. (3) For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of many occasions, consists of the same or different acts. (4) For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section. (5) For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is caused.

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R v Hubbuck [1999] 1 Qd R 314

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Several acts involved to establish either protracted conduct or on more than one occasion the jury would have to agree on at least one of the acts.

Criminal Code 1899 (Qld) Section 359A – Determining Detriment (a) apprehension or fear of violence to, or against property of, the stalked person or another person; (b) serious mental, psychological or emotional harm; (c) prevention or hindrance from doing an act a person is lawfully entitled to do; (d) compulsion to do an act a person is lawfully entitled to abstain from doing. Examples of paragraph (c)— A person no longer walks outside the person’s place of residence or employment. A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places. Example of paragraph (d)— A person sells a property the person would not otherwise sell.

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R v Vaughan [2010] QCA 268 at 24

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Examples of detriment in S359A are alternatives Must prove actual detriment and that; Detriment reasonably arose in all circumstances

Whether it was reasonable for those acts to cause apprehension or detriment.  The question is  Were the acts of a kind as to reasonably give rise to apprehension or fear of detriment;  Did the acts give rise to such a (reasonable) reaction in the complainant? Ex p Taylor [2009] QSC 131 

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S 359(d) Code   

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Implies that person must know or be aware of the conduct Awareness and conduct do not need to be at the same time A lapse in time must not  Prevent detriment or  Undermine conclusion that conduct would cause apprehension Need awareness, but not at the time it’s occurring. May be too late if you become aware after arrest. A lapse of time may not stop such a finding, even in a case in which the defendant has been taken into custody.

R v Davies [2004] QDC 279

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Watching via equipment stepdaughters showering and undressing As parties were unaware at the time, was not classified as stalking Approach confirmed in Ex parte Taylor

Criminal Code 1899 (Qld) Section 359D – Exclusions Unlawful stalking does not include the following acts— (a) acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act; (b) acts done for the purposes of a genuine industrial dispute; (c) acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest; (d) reasonable condu...