Assaults Flashcards
(16 cards)
Is there a definition in the Crimes Act for “Assault”?
No. There is no definition of assault in the Crimes Act. It relies on Common Law.
What is the test for Self Defence?
Section 418 - Self Defence (when available)
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
What is Transfer of Malice? Is it still an assault?
When a person intends harm on a Victim, but harm is transferred to another person (or second Victim). Yes, this is still an assault because the malice that was formed to assault the first Victim is transferred to the second Victim who was actually injured.
What is the concept of “Recklessness” when it comes to assault?
R v Coleman (1990) found that:
The concept of recklessness is simply a realisation of the possibility that some injury might result but nevertheless proceeding with the act.
** Reckless indifference or foresight of the consequences without actual intent.
What is Common assault?
s61 of the Crimes Act:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”.
What is an assault (according to Halsbury Law of England).
An assault is any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence. If force is actually applied, directly or indirectly, unlawfully or without the consent of the person assaulted, the assault becomes a battery, however slight the force.
What are the elements of Assault?
The prosecution must prove that the Accused:
- Struck, touched or applied force to another (battery), or threatened another with immediate violence (assault), without lawful excuse,
- Intentionally or recklessly, and
- Without consent of the victim
- Without lawful excuse
What Section of the Crimes Act is “Assault Occasioning Actual Bodily Harm”?
Section 59
An assault my comprise of:
- Actual violence,
- Attempted violence
- An offer/threat to do actual violence
Correct. As long as the Victim apprehends the fear of immediate violence or force against him/her, you have an assault.
To have an assault does Mens Rea have to be present?
Yes. Mens Rea and Actus Reus must both be present.
Can mere words constitute an assault?
Yes. Master v Watt (1992) held that:
- Did the words put the victim in apprehension of physical violence?
- If so, was that apprehension of physical violence immediate?
The important thing to remember when it comes to words constituting an assault is that the apprehension is immediate and that there is the mens rea behind it.
Can “conditional threats” constitute an assault?
Yes. Conditional threats can be an assault as per Police v Greaves [1964]:
“A threat in its very nature usually provides the person threatened with an alternative, unpleasant though it may often be. It is only necessary to recall the oft repeated threat of the highwayman “your money or your life” to see that if a pistol was pointed at the victim it would be idle to say that there was not a threat to apply force to the person of another in circumstances in which the person making the threat had, or at least caused the other to believe on reasonable grounds that he had, present ability to effect his purpose, and therefore that an assault had been committed.
What are the two tests of Recklessness?
Probability vs Possibility.
(murder is probability (likely to happen) and everything else is possibility (might happen))
R v Coleman (1990)
“In statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a REALISATION on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the DEGREE of harm in fact so done) might be inflicted (that is, May POSSIBLY be inflicted) YET HE WENT AHEAD AND ACTED.
Who is the onus of proof on when it comes to self defence?
Section 419 of the Crimes Act provides that in any criminal proceedings where self defence is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
Is self defence available to an Accused if he/she voluntarily engages in a fight or consents?
No. No issue of self-defence arises if the Accused voluntarily engages in a fight, or consents.
How is self defence negated?
The prosecution will negate self-defence if able to prove beyond a reasonable doubt:
1. That the Accused DID NOT genuinely believe that his or her conduct was necessary in self defence, (subjective)
- OR-
2. The response to the danger as the Accused perceived it was disproportionate (objective).
