LAWS1016 Assault Flashcards
Elements of Common Asssault
AR
1. Act (not omission) of the accused that either (a) results in the actual application of unlawful force or (b) causes the victim to apprehend the immediate application of unlawful force.
MR
- Intention or Advertent Recklessness
- Temporal Coincidence
Act (not omission) of the accused.
Assault cannot be based on an omission.
(Fagan v Commissioner of Police) left car on foot, one complete continuing act (-).
Immediacy requirement: Whether the threat of harm is sufficiently imminent to establish the AR element BRD.
Threats of violence made over the phone may satisfy the requirement of immediacy in some factual scenarios.
However, in (Knight) D’s threats to the judge / police officer and their family members were held to be “mere threats which may have been executed at any time in the future, if at all”, insufficient evidence for conviction.
(Zanker v Vartzokas) accepted lift, sexual offers, asked to be let out, accelerated, threatened to take her to his mate’s house to “fix her up”, although whereabouts of house and length to reach it was unknown, threat was an immediate and continuing as V was imprisoned by D, V reasonably believed in D’s intention, violence threatened relatively immediate and likely, jumped out.
However, this is no longer necessary, s13 Crimes (D&PV) Act 2007.
Advertent Recklessness
P must prove BRD that D have foresight of the possibility (aka. likelihood) that his acts will inflict physical contact or cause an apprehension of imminent unlawful contact (even if not desired), but carried out his acts anyway (Aubrey) (Coleman) (McPherson v Brown).
Inadvertent recklessness is not a sufficient mental state.
Temporal Coincidence
(Fagan v Commissioner of Police) although initial act was unintentional, necessary MR (intention) was formed while leaving the wheel on officer’s foot. For an assault involving a “continuing act”, MR need not be present at the commencement of the AR, but can in effect be superimposed onto an existing (and continuing act).
Aggravated Assaults
s61 Common assault.
s59(1) Assault occasioning ABH.
s59(2) Assault occasioning ABH committed in company.
s33(1) Wounding or GBH with intent to cause GBH.
s33(2) Wounding or GBH with intent to resist lawful arrest / detention.
s35(4) Reckless wounding.
s35(3) Reckless wounding committed in company.
s35(2) Reckless GBH.
s35(1) Reckless GBH committed in company.
s54 Causing GBH by unlawful or negligent act / omission.
s13 Crimes (D&PV) Act 2007 stalking or intimidation with intent to cause fear of physical or mental harm.
Definition of “ABH”
“any hurt or injury calculated to interfere with the health or comfort of the victim … … need not be permanent but must be more than merely transient or trifling” “more than a fleeting or trivial effect on the victim” (Donovan) (Swan). E.g. bruising and scratches.
Definition of “Wounding”
“infliction of an injury which breaks the continuity of the skin”
“involves the breaking or cutting of the interior layer of the skin (dermis), the breaking of the outer layer (epidermis) is not sufficient” (Shepherd).
Definition of “GBH”
s4(1) Crimes Act: non-exhaustive definition “GBH” = (a) destruction of a foetus of a pregnant woman (b) permanent or serious disfiguring of a person (c) grievous bodily disease.
GBH is to be interpreted in its natural and ordinary meaning (i.e. really serious injury) (DPP v Smith 1961).
Injuries need not be permanent, long-lasting, or life-threatening, but needs to be a “really serious” injury (Haoui).
(Haoui) Beazely JA Dissent: fracture of a small bone in the cheek, although plate is permanent, surgery was awkward, it does not convert the injury into a more serious one.
Definition of “Stalking”
s8(1) Stalking = following the person about, watching the person, frequenting in the vicinity of or an approach to, a person’s place of residence, business, work, or any place the person frequents for social / leisure purposes.
Definition of “Intimidation”
s7(1) intimidation = (a) harassment or molestation (b) an approach phone, txt, email, that causes person to fear for her safety (c) or any conduct that causes a reasonable apprehension of injury to a person, or to a person with whom he / she has a domestic relationship, or of violence or damage to any person or property.
No immediacy requirement!
Elements of s13 Stalking with Intent to cause Physical or Mental Harm
AR
- Act of stalking or intimidation.
- that causes victim to fear physical or mental harm
MR
- Intention to cause fear, knowledge, or advertent recklessness.
- Temporal coincidence
