assault Flashcards
(36 cards)
assault
common assault including circumstances of aggravation
the common law has two seperate offences called assault or common assault:
- assault - a threat - psychic assault
- battery - physical contact - contact assault - slightest contact with another
in victoria, as in other common law jurisdictions, both of these forms are referred to as if they are one offence, assault or common assault
they remain seperate offences which have different physical elements:
- unlawful physical contact or the application of force - contact assault - previosuly called battery
- creation of apprehension of immediate or imminent unlawful physical contact or application of force - once called assault and now sometimes called psychic assault to distinguish it from assault where there is physical contact
there are two forms of assualt
zanker v varzokas
common assault: common law offences
common assault including circumstances of aggravation
elements of common assault must be complied from the case law
while the offences are common law, the penalities are in legislation - an example of the hybrid nature of the australian legal system
common assault: elements
common assault including circumstances of aggravation
physical elements:
- psychic assault: act which creates apprehension of immediate or imminent unlawful physical contact or application of force
- contact assault: it may be self-defence of a person or property, lawful arrest makes conduct lawful as does consent in some contexts such as medical procedures and contact sport
fault elements
intentionally or recklessly:
- psychic assault: creating apprehension in another of imminent unlawful physical contact of application of force
- contact assault: making unlawful physical contact
physical elements
common assault including circumstances of aggravation
must be psitive act and an cannot be omission
- must be positive act and cannot be omission (a person or thing that has been left out or excluded -> a failure to fulfil a moral or legal obligation) and physical elements and fault elements must coincide
fagan v metropolitan police commissioner
physical elements
common assault including circumstances of aggravation
words can be positive acts and constitute as assualt without physical touching
zanker v varzokas
physical elements
common assault including circumstances of aggravation
conditional words as positive acts
- a conditional threat is where there is an indication that if person spoken to, does not do something, speaker will inflict violence
- raises issue of how imminent does the threat of violence need to be for it to be an assault
tuberville v savage
physical elements - unlawful
common assault including circumstances of aggravation
an everyday example of lawful touching of others
boughey v the queen
fault elements
common assault including circumstances of aggravation
intention or reckless
- intention: a thing intended; an aim or plan
- reckless: acting without thinking of the consequences, often involving disregard for potential dangers or risks
the queen v venna
legislative penalties for common assault
common assault including circumstances of aggravation
almost all common assaults are prosecuted in summery proceedings in the Magistrates court
- penalties are found in ss23 and 24 of the Summary Offences Act 1958
they are rarely found in the county court, but if they are, it would because of the seriousness of the circumstances of aggravation, using offensive weapons including firearms in assaulting police and protective service officers
more serious assaults in crimes act 1958
common assault including circumstances of aggravation
more serious forms of common law of assault has been replaced by provisions in the crimes act 1958 (vic)
- common law is still relevant to understanding overlaps and gaps in offences creates by legilation such as fault elements of intention and recklessness
- crimes act has a number of legislative offences against the person
provisions create offences distinguishable in at least 5 ways:
- level of harm inflicted (s16-19, 24, 32, 33)
- threats (s20-21, 23)
- endangerment (s22-23)
- stalking (s21a)
- people of particular status (overlaps with assaulting police officers and emergency workers) (s31(1b))
crimes act
common assault including circumstances of aggravation
generally, the physical elements and fault elements are clearly set out in the legislation
- it predates the use of plain english in drafting legislation
section 15: contains key definitions for expressions
injury means:
- physical injury; or
- harm to mental health
whether temporary of permanent;
physical injury inlcudes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function;
harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm
serious injury means:
- an injury (including the cumulative effect of more than one injury) that; a) endangers life or b) is substantial and protracted; or
- the destruction, ther than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other
harm;
injury us defines in s15
s16
causing serious injury intentionally
common assault including circumstances of aggravation
a person who, wihtout lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence
penalty - level 3 imprisonment (20 years maximum)
he kaw the v the queen (pg 42)
la fountaine v the queen (pg 42)
the queen v westaway (pg43)
s17
causing serious injury recklessly
common assault including circumstances of aggravation
a person who, wihtout lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence
penalty - level 4 imprisonment (15 years maximum)
conduct table (pg 45)
the queen v crabbe (pg46)
the queen v venna (pg47)
s18
causing injury intentionally or recklessly
common assault including circumstances of aggravation
a person who, wihtout lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence
penalty:
- if the injury was caused intentionally - level 5 imprisonment (10 years maximum);
- if the injury was caused recklessly - level 6 imprisonment (5 years maximum)
conduct table (pg 49)
the queen v his honour judge hassett
s24
negligently causing serious injury
common assault including circumstances of aggravation
a person who by negligently doing or omitting to do an act causes serious injury to another person is guilty of an indictable offence
penalty: level 5 imprisonment (10 years maximum)
fault element - criminal negligence
conduct table (pg51)
nydam v the queen
the queen v sheilds (pg52)
physical element
unlawful: consent
common law rules means that there are situations in which what may appear to be assaults, including serious injuries and even death, are not assaults as consent makes the touching lawful
the absence of lawful excuse is required for all the forms of assault we’ve looked at including both forms of common assault and causing serious injury and injury:
- sports including contact sports and boxing and martial arts
- medical procedures
- tattoos, piercing and body modifications
- sex related activities with limits and
- without their consent, reasonable smacking of children for lawful correction is also lawful
legislation offences of assaults against polive officers and emergency workers
crimes act 1958 s31
summary offences act 1966
s51 - assaulting et.c emergency workers, custodial officers, youth justice custodial workers or local authority stuff on duty
- as indicated, are legislative offences which rely little on common law so that they are exercised in statutory interpretation of criminal law concepts and principles
A person who— …
a) assaults or threatens to assault another person with intent to
commit an indictable offence;
b) assaults or threatens to assault, resists or intentionally obstructs an
emergency worker on duty …, knowing or being reckless as to
whether the person was an emergency worker or a youth justice
custodial worker or a custodial officer; or …
is guilty of an indictable offence
s31
assaults
s31 (1b) requires prosecution to establish beyond reasonable doubt the following elements:
physical elements:
- assault
- without lawful excuse
- emergency worker (defined in s10aa sentencing act 1991 vic)
- the emergency worker was acting in execution of their duty
- direct or indirect application of force to body or clothing
fault elements:
- intention or recklessness
- knowledge, that the accused knew or was reckless about thether that person assaulted was an emergency worker
checkpoint
the expression physical injury in s15 of the crimes act 1958 includes:
- unconsciousness
- impairment of a bodily function
- substantial pain, and
- infection with a disease
checkpoint
the expression injury in s15 of the crimes act 1958 includes:
- physical injury
- harm to mental health
checkpoint
the expression serious injury in s15 of the crimes act 1958 includes:
- an injury that endangers life, or
2, is substantial and protracted
checkpoint
according to s15 of the crimes act 1958:
harm to mental health does not include emotional reactions such as distress, gried, fear, or anger unless they result in psychological harm
- s15 defines harm to mental health as including psychological harm bu explicitedly excluded emotional reactions unless they lead to psychological harm
checkpoint
when an assault causes a mother to lose a foetus this is:
a serious injury
- the statutory definition of serious injury includes:
an injury – including the cumulative effect of more than one injury - that endangers life, or
an injury that is substantial and protracted
losing a foetus due to an assault may appear to fall outside the threshold for substantial and protracted harm to the mother
however, it marks a compromise which you may or may not agree with
it is a compromise between recognising the foetus as a person in its own right and the significance of the loss of the foetus for the mother although it may not meet the criteria in (a) or (b)
checkpoint
the following are categories of injuries as defined in s15 of the crimes act 1958 which can be caused by assault in victoria:
- grievous bodily harm
- injury
- serious injury
- psychological harm
