Topic 5 - Offences Against A Person PDF

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Topic 5 - Offences Against A Person. Common Law Assault ● ● ● ●

Assault is a generic term used to describe those offences involving unlawful interference with another person An assault may involve actual force or the threat of force. Although the law relating to assault was not substantially amended in Victoria , the common law offence was not abolished The common law offence of assault continues to exist, triable on indictment with a max penalty of level 6 (5 years) imprisonment (s.320 Crimes Act)

Relevance of Common Law assault ● ● ●

s. 23 summary offences Act 1966 - this is the most typical charge of assault as an alternative to crimes act sentencing Unlawful and dangerous act manslaughter; unlawful and danger and causes the death of another person - most commonly; the unlawful act is an assault. Other offences involving assault; e.g. burglary. - include the term of assault within them.

S.23 Summary Offences Act 1966 (vic) ● ● ● ●

Any person who unlawfully assaults or beats another person shall be guilty of an offence Penalty: 15 penalty units or imprisonment for 3 months Assault is not defines os we use the common law principles of assault So commonly charged because it is used for relatives minor assaults and an alternative to crimes act offences.

Assault Vs Battery ● ●

An Assault in the strict sense is an act causing the victim to apprehend the imminent application of force A battery is the unlawful application of force by the accused upon the victim

UNLAWFUL - acknowledge that sometimes the application of force is lawful. Common law definition: Fagan v Metropolitan Police commissioner ● ●

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Assault means any act which intentionally (or recklessly) causes another person to apprehend immediate and unlawful personal violence Assault is generally synonymous with ‘battery’ which is used to refer to ‘the actual intended (or reckless) use of unlawful force to another person without his or her consent. Force can be applied through different mediums

R v Ireland ‘ It is necessary to consider the two forms which an assault ay take. The first is battery, which involved the unlawful application of force by the defendant upon the victim….The second form of assault is an act causing the victim to apprehend an imminent application of force upon her’ - Lord Steyn S31 Crimes Act 1958

Aggravated Assault ●

An aggravated assault is an assault which is considered as more serious because of the circumstances in which it was committed. For example; assaulting a police officer.

External element/ Actus Reus (assault)

1. Caused the victim to apprehend the imminent application of force ● Positive acts/words. (Ireland) like a raised fist.

Zanker v Vartzokas ●

The threat of future harm made to the victim in the moving car may still create an apprehension of imminent harm where there is no escape and no prospect of a novus actus interveniens [intervening acts] between the threat and the anticipated harm.

External element/ Actus Reus (assault) - in a hypothetical form ●

Caused victim to apprehend the imminent application of force:

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positive words /acts Apprehension of force Conditional/hypothetical threat

Clear intention expressed o apply force only if the condition is or isn’t satisfied - formed the conclusion if the condition expressed was lawful or unlawful.

Fault element ● ●

Intentional or reckless (Fagan) Foresight of probability o harm and apprehension of harm (R v Campbell)

5.2 Offences against the person: statutory offences under the crimes act 1958 (vic) ●

Statutory offences against person

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Common law assault Consent, hostility and lawful excuse

R v Westway ● ●

When section 16 refers to a person who intentional causes serious injury what it requires to have been intentionally done is the causing of serious injury The second does not speak of intentionally doing an act which causes serious injury. It speaks of intentionally causing serious injury. The intention required is an intention to do that.

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The test for recklessness is that the accused must be aware that when committing the relevant act, that doing so would probably cause serious injury.

R v Campbell ●

We have no doubt that the appropriate test to apply is that it is possession of foresight that injury probably will result that must be proved.

5.3. The Defence of Consent in Relation to Offences Against the Person

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Consent to an assault makes it lawful. A victim cannot consent to an act that will or probably cause them bodily harm. - not in the public interest to have a person cause bodily harm In some circumstances violence is not punishable under criminal law ‘The consent of the person affected precludes them from complaining'

R v Stein ●

Although the deceased had accepted consent to the bondage activity - the application of a gag to this mouth whether or not he has consented, involved exposure to the risk of serious physical injury to him…there was a foreseeable risk of serious injury

Tattooing and Branding R v Wilson: ‘For our part, we cannot detect any ogcal difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was free to engage in it as anyone else. We do not think that we are entitled to assume that the method adopted by the appellant and his wide was more dangerous or painful than tattooing....