Week 3 Non-fatal offences against the person PDF

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Notes on Non-fatal offences...

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Week 3 Non-Fatal Offences Against the Person (Assault Offences, Aggravated Assault Offences) •

Common assault

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Aggravated assault offences

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Assaults and Consent

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Assaults and Defences

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Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Common Assault: Overview CRIMES ACT 1900 s61 - Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. •

The substantive content (elements of the offence) of the offence is found at common law;

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‘An assault is any act which intentionally – or … recklessly – causes another person to apprehend immediate and unlawful personal violence’: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Venna [1976] QB 421; McIntyre [2009] NSWCCA 305.

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Two alternative actus reus for common assault:

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1. Causing another person to gear immediate and unlawful personal violence, or

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2. Making unlawful physical contact

Two alternative mens rea for common assault: •

1. Intentionally: basic intention for either one of the above actus reus, or

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2. Recklessness: Accused subjectively foresaw the possibility that they would cause either one of the above actus reus

Common Assault: Actus Reus •

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An assault occurs where an ACT of the accused causes another person to fear the infliction of immediate unlawful force: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; •

Actus reus of assault requires the prove of an act on the part of A (omission alone is not enough)

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James J found that A’s omission to drive his car away from the police’s left foot was not enough to prove actus reus, but also found that A had completed a relevant act by driving onto the police’s foot and then keeping his car in place. (which is when he formulated the intention of the offence)

Words are sufficient: Barton v Armstrong [1969] 2 NSWR 451; Knight (1988) 35 A Crim R 314; Mostyn (2004) 145 A Crim R 304; •

Barton v Armstrong: Tailor J observed that threat of violence made over the phone COULD be a threat of immediate and unlawful personal violence in given circumstances, and thus is assault. But this is not to say that just because the threat was made by phone it could be constituted as assault – the content of the words spoken is important in that context (eg general threats with no immediate prospect of unlawful content for example does not count).

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Mostyn: Words alone, or in combination with other acts, can constitute assault. V subject to violence in her home. She fled the house and hid in a shed to wait for the police. She heard the A shout that he was hunting for her and observed him walking around the area in which she was hidden, but at some points was too far away from her to actually make contact with her. Court observed that a threat to strike a person, even at such a distance that makes the contact impossible, may constitute

an assault if it instils a fear of immediate violence in the mind of the hearer. The emphasis is therefore on the fear of that harm created in the victim rather than the infliction of that harm. •

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No words required: Smith v Superintendent of Woking Police Station (1983) 76 Cr App R 234; Ireland and Burstow [1998] AC 147; •

Smith: Court held that looking through a window with the relevant intent amounted to the actus reus of assault.

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Ireland and Burstow: Phone calls where the accused remain silent were found to provide the basis for assault conviction. Court explains that in this case, the caller intends by their silence to cause fear, and is so understood. The victim assailed by uncertainty about his intentions. Fear may dominate her emotion, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence.

Fear of imminent harm: Zanker v Vartzokas (1988) 34 A Crim R 11; Mostyn (2004) 145 A Crim R 304. •

Zanker v Vartzokas: V accepted a lift from A by his fan. Once driving in the van the defendant offered her money for sexual favours which she refused and asked to be allowed to exit the van. Defendant then increasingly accelerated while the plaintiff demanded to be let out. Defendant said 'I am going to take you to my mate’s house. He will really fix you up'. Plaintiff jumped out of the car at 60 km/h and was injured. Appeal Court held that the accused had created an ongoing fear of imminent harm, so there was an ongoing fear of imminent harm on arrival at the mate’s house, and that the fear that the arrival could have happened to the victim at any time, so that fear persisted while the victim was confined to the van. Court held that her fear was a continuing fear induced by the accused original words in the situation where he remained in a position of dominance, and in a position to carry out the threat of violence at some time not too remote that is keeping the apprehension. The gist of the assault ever-present in the victim’s mind.

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Summing up: For P to make out the actus reus of assault on basis that the A created a fear of imminent harm, they must prove beyond reasonable doubt that A did some act that created a fear of immediate unlawful violence of force in the victim.

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Battery occurs when there is an application of force to the person of the victim: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439;

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Even the slightest contact is sufficient; eg touching a person’s clothing can be a battery: Thomas (1985) 81 Cr App R 331; Thomas: Court found touching a person’s clothes while they’re wearing it amounts to making contact with the person for the purposes of the law of assault, although it is not all minor instances of touching that constitute the act of actus reus of assault: •

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Implied consent to contact that is part of ‘the exigencies of everyday life’: Collins v Wilcock [1984] 1 WLR 1172; Department of Health and Community Services (NT) v JWB (Marion’s case) (1992) 175 CLR 218; Collins v Wilcock: Most of the physical contacts of ordinary life are not actionable because of this implied consent: eg, hands seized in friendship or tap at the back in a party

Examples = contact through implement: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; spitting: DPP v JWH (NSWSC, 1997). •

Fagan: Held it did not matter if the battery was inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the actions of the offender

Common Assault: Mens Rea •

An assault is committed where the accused intended to cause fear or make unlawful contact with the victim: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; •

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Fagan: Prosecution has to prove beyond reasonable doubt that the accused had a basic intent to create fear or make unlawful contact.

An assault is also committed recklessly where the accused forsees the possibility that they will cause fear or make unlawful contact with the victim and ignore that risk: Vallance (1961) 108 CLR 56; Venna [1976] QB 421; Williams (1990) 50 A Crim R 213; Coleman (1990) 19 NSWLR 467; •

Accused must forsee the relevant results of their conduct; inadvertence (oversight, lack of attention) is not sufficient for common assault: MacPherson v Brown (1975) 12 SASR 184

Aggravated Assault Offences •

Aggravated assault offences are found in CA ss 32-49A, 54-60E;

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Aggravated assault is regarded in law as more serious than a common assault: assaults can be aggravated in a number of ways: eg, because A has a specific intent to cause a high level of harm, because A does in fact caused a high level of harm to V, because A used a particular means or method of causing harm to V (eg using an offensive or dangerous weapon), because of the status of V (typically a more vulnerable V, eg child, or more exposed at risk eg police), or because of the context.

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Aggravated assault offences typically involve specific intent to cause harm; harm caused; the method used; the status of the victim or the setting (Brown et al, 641);

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Some aggravated assault offences build upon the common assault offences and its elements (eg Crimes Act 1900 (NSW) s 59 re ABH):

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CRIMES ACT 1900 s59 - Assault occasioning actual bodily harm (1) Whosoever assaults (conduct) any person, and thereby occasions actual bodily harm (consequence), shall be liable to imprisonment for five years.

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Note that s 59 does no require proof of specific intent to cause ABH: Coulter v The Queen (1988) 164 CLR 350; Williams (1990) 50 A Crim R 213.

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Other aggravated assaults are bespoke statutory offences (eg Crimes Act 1900 (NSW) s 35(2) re recklessly causing GBH);

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CRIMES ACT 1900 s35 – Reckless grievous bodily harm or wounding (2) Reckless Grievous Bodily Harm A person who – (a) causes grievous bodily harm to any person (consequence), and (b) is reckless (recklessness) as to causing actual bodily harm to that or any other person, the recklessness of this offence relates to a lower level of harm (proving ABH recklessness enough for GBH mens rea) is guilty of an offence Maximum penalty - Imprisonment for 10 years.

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No need for P to address the elements of the common assault when pursuing a charge under Crimes Act s35 (2) as the legal requirements of the crime (the essential elements) are different

Actual Bodily Harm (ABH) •

ABH is defined at common law as harm that is ‘more than merely transient and trifling’: R v Donovan [1934] 2 KB 498; •

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R v Donovan: Donovan struck R with a cane, Court observed that bodily harm has its ordinary meaning that includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. The injury need not be permanent but must be more than merely transient and trifling.

Examples of ABH include (from McIntyre [2009] NSWCCA 305): •

Bruising: Cameron [1983] 2 NSWLR 66;

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Scratches/grazes/cuts: Kbayli [2017] NSWDC 197;

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(Some) psychiatric injuries: Chan Fook [1992] 2 All ER 552; Ireland and Burstow [1998] AC 147; Lardner (NSWCCA, 1998); Li [2005] NSWCCA 442; see also Aubrey (2017) 260 CLR 305; •

Chan Fook: V accused of stealing in student accommodation. After a forceful investigation V was locked in a room. He tried to escape thru a window and fell t the ground and suffered significant injuries. Appeal held that “ABH does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.”

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Ireland and Burstow: Held that severe depression and anxiety disorder was considered to amount ABH.

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Lardner: Court of criminal appeal held that nervous shock did not amount to recognised psychiatric illness and therefore not ABH.

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Li: Court of Criminal Appeal acknowledged that it would likely be ABH where a V was injured psychologically in a very serious manner, going beyond merely transient emotional feelings and state of mind.

CA s 59 does not require proof of specific intent to cause ABH: Coulter v The Queen (1988) 164 CLR 350; Williams (1990) 50 A Crim R 213....