NFOATP ACT 1997 Flashcards
S.2 Assault
A person shall be guilty of the offence of assault, who without lawful excuse, intentionally or recklessly, directly or indirectly applies force to or causes and impact on the body of another or causes to believe another on reasonable grounds that he or she is likely immediately to be subjected to such force or impact, without the consent of the other.
Assault AR: Force
S.2(2): in ss.1(a) force includes:
- an application of heat, light, electric current, noise or any other form of energy
- application of matter in solid liquid or gaseous form.
S.2(1) indirect or direct force applied - DPP v K 1990 - acid poured into hot air dryer
DPP v K 1990
Related to indirect force of assault,
Accused poured acid into hot air dryer
Assault AR: Action
R v Ireland; R v Burstow 1997
Words can constitute assault.
The behaviour must be such as to put the victim into reasonable fear of subjected impact
Assault AR: Immediacy
Tuberville v Savage 1669 - Victim must immediately believe that force is to be subjected
Assault AR: Consent
Must be valid, given by a competent individual and not coerced through fraud or force.
Collins v Wilcock 1984 - implied consent to every day life
S.3 Assault Causing Harm
A person who assaults another causing him or her harm shall be guilty of an offence.
AR: assault causing harm
MR: within assault - intentional or reckless
Minister for Justice v Dolny 2008
Related to assault causing harm.
Peart J stated the differences between s2 and s2 assault. S2 assault requires that the person did not consented, the commisson must be without lawful excuse, intentional or reckless and s3 does not contain these requirements.
S.3 Assault Causing Harm
HARM
Defined in s.1 of the act: Harm to body or mind and includes pain and unconsciousness.
S.4 Causing Serious Harm
A person creates the offence of causing serious harm who, intentionally or recklessly causing him or her serious harm.
AR: causes serious harm
MR: intentionally or recklessly
LRC in 1994 recommended the creation, NFOATP Act 1997 simply adopts the concept of CSH, assault should not necessarily be amounted
Definition of Serious Harm
S.1 Serious harm:
Injury which creates substantial risk of death of serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.
DPP v Kirwan 2005
Relates to serious harm, defines the permanence of injury,
Facts were that in a pub fight the def hit V with a glass causing serious harm to his eye.
Def argued that stiches are not part of the harm
Rejected: stitching immediately associated with the injury and necessitated by it.
Consent
Can consent to s2 Assault
Not mentioned in s3 and s4.
Consent can be a defence to serious harm in 3 context: sport, general exhibition and sadomasochistic sexual activity
R v Brown 1994
Related to consent to assault.
Facts: private sadomasochistic sexual activity.
Stated that consent is only a defence where the conduct is in public interest
HoL rejected 3/2.
Lord Templeman stated that society is bound and entitled to protect itself against cult of violence. Pleasure derived from pain is an evil thing, cruelty is uncivilised. He referred surgeries, boxing, tattoo which is in public interest.
Lord Jauncey: consent is no defence to s.47 of the 1861 Act - implied consent only to conducts in public interest(boxing, surgery, parental chastisement)
R v Brown dissents
Lord Slynn: its for legislature to decide if private acts as criminal as public.
Lord Mustill: question of private morality, shouldnt be judged by criminal law.
No theory on consensual violence - questioned boxing.
CONSENT
R v Wilson 1997
Relates to consent.
Husband was branding his wife on buttocks with consent. CoA stated wife’s consent as a defence to ACH.
Russell CJ akinned the conduct to tattooing, he deemed it as a conduct with similar dangerousity and pain and also he stated that a consensual activity between husband and wife in a matrimonial home cannot be deemed and a proper matter for criminal prosecution.
Appeal allowed.
CONSENT
Laskey and others v UK 1997 ECHR
Relates to Consent to ACH
Homosexual sadomasochistic activity.
Application made against the violation of respect of private life contrary to art 8 of the ECHR. Rejected unanimously, finding that authorities are entitled to consider whether the prosecution and conviction was necessary or not against the appelant in a democratic society for the prottction of health within thr meaning of Article 8(2) of the Convention. Applicant referred to R v Wilson that same conduct in a homosexual context doesnt deserve criminal punishment. Rejected that the conduct was more serious in this case and mentioned that the opinion was based on the nature of the exercise and not on the sexual proclivities of the applicants.
Consent to Medical Treatment
Consent by a competent adult will be lawful injury, only if carried out by qualified practitioner for a legitimate therapeutic purpose.
Any patient has a right to refuse - Re a Ward of Court 1996
Surgery carried out without consent is assault.
LRC recommends emergency treatment without consent - rejected.
Consent to Sporting Injuries
2 cases:
R v Coney 1882: a blow struck in anger is an assault, but a blow struck in sports which is not intended to cause injury is not. Assault is breach of peace and unlawful, consent of the person struck is immaterial.
R v Barnes 2004: define the criminal threshold level: nature of the act, degree of force, type of sport etc.. and if it has happened in the heat of the moment.
R v Coney 1882
Related to consent to sporting injuries.
Determines that a blow struck in anger is an assault, but a blow struck in sports which is not intended to cause injury is not. Assault is breach of peace and unlawful, consent of the person struck is immaterial.
R v Barnes 2004
define the criminal threshold level: nature of the act, degree of force, type of sport etc.. and if it has happened in the heat of the moment.
S.6 Syringe
(1) A person who (a) injures anotther by piercing the skin of that other with a syringe, or (b) threatens to so injure another with the syringe, with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the injury caused or threatened shall be guilty of an offence.
(2) A person who, (a) sprays, pours or puts onto another blood or any fluid or substancr resembling blood, or (b) threatens to spray, pour or put onto another blood or any fluid or substancr resembling blood, with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the action caused or threatene shall be guilty of an offence.
The maximum sentence for an offence under Sections 6(1) and 6(2) when tried kn indictment is 10 years imprisonment.
S.6(3) Syringe - Transferred Intent
A person who in committing or attemptin to commit an offence under subsection (1) or (2) -
(A) injures a third person with a syringe by piercing his or her skin, or
(B) sprays, pours or puts onto a third person blood or any fluid or substancr resembling blood,
resulting in the third person believing that he or she may become infected with disrase as a result of the injury or action caused shall be guilty of an offence.
S.5 Syringe - Actual Attacks
(a) A person who intentionally injures another by piercing the of that ther with a contaminated syringe shall be guilty of an offence.
(b) A person who intentionally sprays, pours or puts onto another contaminated blood shall be guilty of an offence.
(c) A person who in committing or attempting to commit an offencr under paragraph (a) or (b) -
(i) injures a third person with a contaminated syringe by piercing his or her skin, or
(ii) sprays, pours or puts onto a third person contaminated blood, shall be guilty of an offence.
This offence is the most serious offence involving ayringes and a person found guilty of an offence under Section 6(5) is liable on conviction on indictment to imprisonment for life. It was inserted to deal with the situation where defendant deliberately infects the victim with a disease such as AIDS.
