Serious Assaults Flashcards
What is intent
Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”.
Proving intent in general
The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.
While an offender’s admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.
Circumstantial evidence from which an offender’s intent may be inferred can include:
• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself.
Proving intent in serious assault cases
In serious assault cases, additional circumstantial evidence that may assist in proving an offender’s intent may include:
• prior threats
• evidence of premeditation
• the use of a weapon
• whether any weapon used was opportunistic or purposely brought
• the number of blows
• the degree of force used
• the body parts targeted by the offender (eg the head)
• the degree of resistance or helplessness of the victim (eg unconscious).
psychiatric injury
In Owen v Residential Health Management Unit5 the Court highlighted that “bodily harm” may include psychiatric injury but does not include mere emotions such as fear, distress, panic, or a hysterical or nervous condition:
It may be necessary that the “injury” should amount to an identifiable clinical condition. Expert evidence will be required before an issue of psychiatric injury arises:
Doctrine of transfered malice
It is not necessary that the person suffering the harm was the intended victim. Where the defendant mistakes the identity of the person injured, or where harm intended for one person is accidentally inflicted on another, he is still criminally responsible, under the Doctrine of Transferred Malice, despite the wrong target being struck.
This principle was applied in Hunt12 (see case summary on page 9), where the defendant intended to stab the property owner, but accidentally wounded the man’s servant instead.
What is Recklessness
Section 188(2) includes the offence of wounding, maiming etc “with reckless disregard for the safety of others”. Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).
While it is necessary to prove that the defendant foresaw the risk of injury to others, it is not necessary that he recognised the extent of the injury that would result.
Aggravated wounding vs aggravated assaulted
Where the offender assaults a person with one of the specified intents, but the victim suffers no actual bodily harm, the appropriate charge would be “aggravated assault” under s192.
Two intents required for aggravated wounding
- The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paras (a), (b) or (c), and
- He or she intended to cause the specified harm, or was reckless as to that risk.
So whereas with the first element of the test, a specific intent is required (ie to commit an imprisonable offence , avoid detection or avoid arrest and so on), the second element may involve either intent or recklessness.
What the crown must prove for facilitate flight
The prosecution must therefore prove that an imprisonable offence was actually committed or attempted before a person can be convicted of aggravated wounding while escaping after it.
Rendered incapable of resistance meaning
In R v Crossan21 the defendant, intending to rape the victim, presented a loaded revolver at her and threatened to shoot her unless she submitted to sexual intercourse.
It was held that a mere threat may not in itself be sufficient to constitute “violent means”, but when the person making the threat is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.
Intent under s198
Subsections (1) and (2) both relate to the same range of actus reus - discharging a firearm at a person, delivering explosives, setting fire to property and so on – the distinction is the offender’s intent.
In subs (1) the offender intends to cause grievous bodily harm, while in subs (2) he intends only to injure the victim, or acts with reckless disregard for the safety of others.
Under s198(1)(a), it is not sufficient for the prosecution to show a reckless discharge of the weapon in the general direction of the person who happened to be hit. There must be an intention on the part of the defendant to shoot at that person.
S198A - uses in any manner whatever
The primary meaning of the word “use” in relation to a firearm is to fire it, but the words “in any manner whatever” widen the definition to include a range of acts that stop short of actually shooting at an officer. It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it be discharged.
Although possession of a firearm alone does not in itself constitute “use”, handling or manipulating the firearm in a manner that conveys an implied threat may suffice.
In R v Swain23 the defendant, when confronted by a constable, removed a sawn-off shotgun from a bag, saying “Don’t be stupid”, causing the officer to fear for his safety. Although he didn’t point the gun at the officer, it was held that his actions in taking the shotgun out of the bag in plain view of the constable amounted to the “use” of the firearm in an intimidating and threatening manner against him.
Acting in the course of his duty meaning
Under s198A the officer must be “acting in the course of his or her duty”.
Police duties arise under both statute and common law and in general terms they include protecting life and property, preventing and detecting crime, apprehending offenders and keeping the peace.
The term includes every lawful act a constable does while on duty and may include acts done where the circumstances create a professional obligation for a constable to exercise policing duties while off duty.
However, an officer who is acting unlawfully, for example using excessive force during an arrest, interfering with a person’s liberty without legal justification, or trespassing on private property without authority, cannot be said to be “acting in the course of his or her duty”.
Intent to resist lawful arrest or detention meaning
It must be proved that the defendant knew an attempt was being made to arrest or detain him or her, or the person he or she was assisting.
In Fisher v R26 the defendant had discharged a firearm several times in a building, but refused to come out when called on by the AOS. He fired a further shot from within the building, although there was insufficient evidence that it was directed at Police.
While it was accepted that the defendant in this matter must have known he had committed crimes for which he was liable to arrest, there was no evidence of an attempt to arrest or detain him at the time he fired the shot.
