Assault

Question 1

DEFINITION OF AN “ASSAULT” :S.222 CC

Answer 1

An assault may occur in two ways
– 1: Any person Strikes, Touches, Moves or otherwise Applies Force to the person of another directly or indirectly without consent or with consent if obtained by fraud

–2: Any person by any bodily act or gesture attempts or threatens to apply force to the person of another without consent and has actual or present apparent ability to effect purpose

Question 2

ASSAULTS - LAWFULNESS

Answer 2

Section 223 Criminal Code

An assault is “unlawful” unless it is authorised, justified or excused by law.

Question 3

EXCESSIVE FORCE

Answer 3

Section 260 Criminal Code
Any force when none is needed. More force than required. Continuation of force.
Deemed to be excessive force

Question 4

CIRCUMSTANCE OF AGGRAVATION - Section 221 Criminal Code

Answer 4

(a) the offender is in a family relationship with the victim of the offence, other than where subsection (1A) applies; or
(b) A child was present when the offence was committed, other than where subsection (1A) applies; or
(c) The conduct of the offender in committing the offence constituted a breach of an order other than an order, other than an order under Part 1C, made or registered under the Restraining Orders Act 1997 or to which that Act applies; or
(d) The victim is of or over the age of 60 years.

Question 5

RACIAL AGGRAVATION Section 80I Criminal Code

Answer 5

In sections 313, 317, 317A, 338B and 444 —
“circumstances of racial aggravation”
means circumstances in which —
a) immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or
b) the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

Question 6

COMMON ASSAULT – SECTION 313(1)

Answer 6

Elements:
• Any person unlawfully assaults another
Simple Offence — Penalty is 18 mths imp or $18000 fine
If the offence is committed in circumstances of aggravation - Penalty is 3yrs imp or $36 000 fine.
Common Assault is a simple offence but there is no statute of limitations

Question 7

ASSAULT CAUSING BODILY HARM Section 317 Criminal Code

Answer 7

Elements:
Any person unlawfully assaults another causes bodily harm.
ACBH is a Crime and can be dealt with summarily.

Question 8

ASSAULTS WITH INTENT Section 317A Criminal Code (3 Distinct Offences)

Answer 8

a) assaults another with intent to commit or facilitate the commission of a crime
b) assaults another with intent to do grievous bodily harm to any person
c) assaults another with intent to resist or prevent the lawful arrest or detention of any person

Question 9

ASSAULTS ON PUBLIC
OFFICERS S318(1)(d) Criminal Code

Answer 9

Any person unlawfully assaults Public Officer
who is performing a function of his office OR
on account of his being such an officer OR
on account of such performance.

Question 10

GRIEVOUS BODILY HARM Section 297 Criminal Code

Answer 10

Elements:
– Any person unlawfully does Grievous Bodily Harm to another
NOTE:
Assault is not an element, therefore Provocation is not a defence.

PENALTY: Section 297Criminal Code Crime 10 Years
Aggravated 14 Years (Stealing of a motor vehicle)

Question 11

UNLAWFUL WOUNDING
Section 301(1) Criminal Code

Answer 11

Elements:
– Any person unlawfully wounds another person.

NOTE: Assault is not an element, therefore Provocation and Consent are not defences.

WOUND:
To constitute a wound there must be a cutting or breaking of both layers of the skin (the dermis and the epidermis) accompanied by bleeding.

NOTE :
A burn is not a wound as there is no bleeding. Internal bleeding is not a wound as there is no breaking of the skin.

Question 12

INDECENT ASSAULT Section 323 Criminal Code

Answer 12

Elements:
• Any Person unlawfully and indecently assaults another
is guilty of a CRIME
PENALTY: Imprisonment for 5 years.
SUMMARY CONVICTION PENALTY: Imprisonment for 2 years and a fine of $24,000

Question 13

DEFENCES TO ASSAULT

Answer 13

– Use of force by citizens S 24 C.I.A.
– Consent S 222 C.C.
– Authorised, justified or excused by law S 223 C.C.
– Defence against home invasion S 244 C.C.
– Provocation S 245 & S 246 C.C.
– Prevention of repetition of an act or insult S 247 C.C. – Self defence S 248 C.C.
– Domestic discipline S 257 C.C.
– Discipline of ship or aircraft S 258 C.C.