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Criminal Law I > Non-Fatal Non-Sexual Offences - Blame and Harm > Flashcards

Non-Fatal Non-Sexual Offences - Blame and Harm Flashcards

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1
Q

What is an offence?

A

An act or omission rendering person doing act or omission liable to punishment (must have penalty).

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2
Q

What is Mens Rea?

A

Act is not guilty unless mind is not guilty (mental state).

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3
Q

What is Actus Reus?

A

Guilty act.

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4
Q

What is offence of Common Assault?

A

s 313 Chapter XXX:
(1) Any person who unlawfully assaults another is guilty and liable -
a) if offence is committed in circumstances of aggravation or racial aggravation… 3 yrs; and
b) in any other case imprisonment of 18 mths.
(2) A prosecution for offence under sub (1) may be commenced at any time.

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5
Q

What are the 3 forms of assault?

A
  1. Forced application.
  2. Attempted assault.
  3. Threatening gesture assault.
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6
Q

What are the elements of Forced application? Sec 222.

A

a) Application of Force.
b) without consent.

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7
Q

What are the elements of Attempted Assault? Sec 222.

A

i Attempted application of force from one to another person.
ii With intent to apply force.
iii By bodily act or gesture (was there a threat - context).
iv actual or apparent ability to effect purpose.
v without that other person’s consent.

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8
Q

What are the elements of Threatening Gesture Assault?

A

i threatening application of force from one to another person.
ii by bodily act or gesture.
iii actual or apparent ability to effect purpose.
iv intent to create apprehension in victim; and
v without other person’s consent.

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9
Q

What is the offence of section 317 - (called) Assault causing bodily harm?

A

(1) Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
(a) if offence committed in circumstances of aggravation or in circumstances of racial aggravation to imprisonment for 7 yrs; or
(b) in any other case, to imprisonment for 5 yrs.
Summary conviction penalties…

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10
Q

What are the elements of offence s 317?

A
  1. Assault (application of force; without consent);
  2. Causation (but for; foreseeability);
  3. bodily harm (injury that interferes with health or comfort (s 1; Scatchard);
  4. aggravation (if applicable s 221(2)).
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11
Q

Section 1 - The term Bodily Harm means?

A

Any bodily injury which interferes with health or comfort.

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12
Q

S 1 - The child means?

A

(a) any boy or girl under the age of 18 yrs; and
(b) in the absence of positive evidence as to age, any boy or girl apparently under the age of 18 yrs.

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13
Q

S 1 term dwelling means?

A

any building, structure, tent, vehicle or vessel, or art of any building, structure, tent, vehicle or vessel, that is ordinarily used for human habitation, and it is immaterial that it is from time to time uninhabited.

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14
Q

S 1 The term grievous bodily harm means?

A

any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health;

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15
Q

Section 223 - Assault is unlawful?

A
  • unlawful and constitutes an offence unless it authorised or justified or excused by law.
  • application of force by one person to the person of another may be unlawful, although done with consent of that person (reference to consent obtained by fraud).
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16
Q

What case tells us that intent to create apprehension in victim is an element of assault?

A

Hall v Fonceca (1983) WAR 309 (Tort) case (Intent - to have in mind)

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17
Q

What form of assault does the case Hall v Fonceca (1983) WAR 309 relate to?

A

Threatening gesture assault.

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18
Q

What is bodily harm?

A

S 1 - bodily injury which interferes with health or comfort.
See offence s 317 - assault causing bodily harm
See Scatchard v R (1987) 27 A Crim R 136.

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19
Q

R v Scatchard (1987) 27 A Crim R 136

A

Scatchard had Johns in headlock for extended period of time. On appeal quashed as ‘hurt’ not ‘bodily injury’ (S 1 - interferes with health or comfort).
Found that a sensation of pain alone was not enough to constitute bodily harm.
Pain not injury - s 317 failed.

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20
Q

Hall v Fonceca (1983) WAR 309

A

Facts: fight over drinks at hockey club. Poked victim on arm. Civil suit for assault and battery.
Assault discussed and means rea - guilty act, guilty mind.
Raised self-defence - complete defence.

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21
Q

Fagan v Commission of Met Police [1969] 1 QB 439. Common Law case.

A

Perpetrator drove onto policeman’s foot by accident = unwilled act. Mens rea.
Police alerts him, but he remained on foot deliberately.
Issue: Was this an application of force? Is that an ongoing application of force. Yes, both in English law and Aust. By parity of reasoning.

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22
Q

Tuberville v Savage (1669)

A

Knight confronts another and says ‘if not for assize time, then I would take the matter further’. Held hand over sword shealth.

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23
Q

Knight v Queen (1992)

A

Telephone call, threatening.
Mere words. Not assault, even attempted assault.

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24
Q

Brady v Schatzel

A

Attempted assault? (Apprehend)

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25
Q

Horan v Ferguson (1994) QCA 375

A

Competing versions of events.
Teacher accused of touching buttocks (at time not sexual), considered aggravated assault.
Issue: tactile encouragement unless consent has been withdrawn express or tacitly.
If don’t consent, then assault. Case deals with consent re: children. Children need to be given time to make clear that touching unwelcome and withdraw consent.

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26
Q

Collins v Wilcock [1984] 3 All ER 374

A

Facts: Police officer wished to question woman in relation to alleged activity as prostitute. Woman decided to walk away, but officer grabbed her arm to stop her from walking away. She resisted, scratched him and was charged with assault.
Issue: was conviction for assault lawful given lack of legal authority on part of officer to restrain.
Dec: held officer acted outside scope of his powers to arrest, and thus outside scope of duties as officer.

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27
Q

Kimmorley v Atherton [1971] Qd R 117

A

Facts: victim posed for two boys for promotional photographs. Kissed both, not back = willing participant but not consent. Don’t have to have willing participant for there to be consent.

28
Q

Pallante v Stadiums Pty Ltd (No 1) (1975) VR 9 331

A

Boxing comp. Def said contract he profited from was a bout (prize fight) that illegal and P suit abusive process.
Crt said each consents to take risk and violence incidental to sport. Has to be in spirit of game, so repeated punches during break is NOT example of that.

29
Q

Raabe (1984) (Crim Appeal QLD)

A

Facts: father-in-law, weapon (fence paling) - smacked him. Consent? Justice Derrington - if anticipate harm, entered fray whilst perpetrator holding pale, then consent raised as issue.
Dec: No clear majority, different rationales behind judgments.
Raabe (1984) - can’t be cited alone, must turn to Lergesner v Caroll (1990) - consent.

30
Q

Lergesner v Caroll (1990) 49 A Crim R 51

A

Two police officers insulting each other. Caroll said ‘well!’, so taken as invite to fight. Caroll convicted, but Crt of Crim Appeal quashed.
Consider public policy , s 223 (ambiguous) reference to consent, different to s 222.
Goes to degree of consent: What was consented to; and was it exceeded?
QLD Crt of appeal held that mistake of fact under s 24 of the Code was open in circumstances where the defendant is mistaken as to whether victim consented.

31
Q

CCWA s 223

A

Assault is Unlawful:
Ambiguous, reference to consent. Inviting public policy considerations.
Unlawful even if consenting.
However, reference to consent being obtained by fraud, so no fraud then question of fact and not public policy.
Question of fact - if was a consent then no assault. Reason Lergesner was quashed.

32
Q

R v Brown [1994] 1 AC 212

A

Facts: Group of gay men engaged in sadomasochistic sexual activities convicted under s OAPA s 20 s 47. Judge directed jury that prosecution not required to prove victims did not consent.
Issue: Should defence of consent be extended to infliction of bodily harm in course of sado masochistic encounters.
Held (House of Lords): appeal dismissed, consent not def.
** So turns from consent, degree and severity of behaviour determines distinction.

33
Q

s 318 Serious Assault. What are the elements?

A
  1. Application of force, without consent; public officer.
    See Reynhoudt (1962) CLR: only need to prove performing their duty.
34
Q

Offence s 313 - what are the other forms of assault apart from application of force?

A

Attempted assault and threatening gesture.

35
Q

Offence of common assault carries elements from s 222 such as attempted assault. What are the elements and cases?

A

Attempted assault (intent is inherent in attempt. Elements:
1. Attempted assault;
2. with intent to apply force;
3. by bodily act or gesture;
4. Actual or apparent ability to effect purpose, without other person’s consent.
Tuberville v Savage, Knight and Hall v Fonceca.

36
Q

Offence s 313, ‘apparent ability to effect purpose’: elements from s 222, what are they and cases?

A

Apparent ability to effect purpose: Brady v Schatzel (1911) (brave or silly) - policeman didn’t admit to be scared, but apprehend they can effect purpose, even though no fear, as fear not relevant.
Zanker v Vartzokas (1988) - in a car
R v Secretary (1996) - extreme violent DV abuse, loaded gun. Victim survived him (offender) going to sleep. Context was apparent ability once wakes. Victim shot him whilst he was asleep.

37
Q

Offence of s 313 - threatening gesture: What is the key element and case?

A

Intent to create apprehension in victim. Hall v Fonceca (1983) = Hockey Club fight and act of raising hand.

38
Q

What is intent?

A

To have in mind.

39
Q

Circumstances of aggravation

A

A composite phrase, can’t separate these words.
s 221 DV

40
Q

Offence s 318 - Serious assault - What does this relate to?

A

Assaulting public officer…(m) if at or immediately before … offender armed with any dangerous or offensive weapon or instrument; or in company of another… 10 years.

41
Q

Grievous Bodily Harm - Offence s 297.
Defined in s 1(1) and 1(4) CC - serious disease. What are the elements of 297?

A
  1. Unlawfully = positively proscribed - forbidden (see Houghton v Queen (2004) SCWA).
  2. Dangerous thing = s 266(2) - control, Houghton, R v BBD [2006] QCA, R v Clark (2007) QCA.
  3. Control of dangerous thing (s 266).
  4. Breach of Duty - 266 and MUST consider injury - permanent or otherwise.
42
Q

R v Clark (2007) QCA

A

Clark had one job: to ensure safety harness attached on flying fox and failed. Caused victim brain damage. Blatant disregard for human life and safety, criminally responsible for harm.
Unlawful GBH - perpetrator showed fundamental disregard for life and safety of others, crime against the state.

43
Q

GBH definition?

A

S 1: any bodily injury of such a nature as to endanger or be likely to endanger life or cause or likely cause permanent injury to health.

44
Q

Tranby v R (1992) QLD

A

Victim and offender fighting and offender bit off ear lobe. Considered a mere flesh wound, as although permanently gone, it did not impact on hearing and not a permanent to the health of victim. Did not effect hearing nor life threatening, so was harm not injury to health.

45
Q

Gough v Gough [1891] 2 QB 665

A

When a definition says ‘means’, “the definition is a hard and fast definition, and no other meaning can be assigned to the expression that is put down in the definition.”

46
Q

Allan v Quinlan; Ex parte Allan (1987)

A

‘ought not to stretch the penal provision in any way’ - not more conduct.

47
Q

Beckwith v R (1976) 135 CLR 569

A

‘any real ambiguity persisting after the application of the ordinary rules of construction is to be resolved in favour of the most lenient construction’

48
Q

Hawkins v Van Heerden (2014)

A

Ambiguity - resolved in favour of accused.

49
Q

Woolmington v DPP [1935] AC 462, 481-2

A

“Throughout the web of English Criminal law on golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt”.
The golden thread also extends to the idea that should the accused raise a defence, then the prosecution must disprove that defence beyond reasonable doubt.

50
Q

s 294 Act intended to cause GBH or prevent arrest (20 yrs). What are the elements?

A
  1. Unlawful (Assault ? whatever the form; Houghton);
  2. Intent (Wilmott; Winner)
  3. Causation (but for; foreseeability) s 266(2) - criminal negligence, if crim neg causation element met;
  4. GBH (Lewis and s 1)
51
Q

S 294 Act intended to cause GBH or prevent arrest. What is the distinction between this and s 297 (GBH)?

A

s 294 is a more serious offence, attracting 20 yrs as penalty and is about a series of ‘intents’. In contrast 297 is overarching issue, attracting 14 yrs. s 294 is GBH AND intention to do the act so more serious.

52
Q

s 301 is wounding and similar acts. What are the elements?

A

Wounding, if penetrates skin and bleeds. Elements:
1. Unlawfully wounds another; or
2. Unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to or taken by by another;
is guilty of a crime.

53
Q

What is unlawful in non-fatal, non-sexual offences against a person?

A

Positively proscribed by law (forbidden). Common Law test of unlawful to such a standard of showing such disregard for the life and safety of others that it amounts to a crime against the state.

54
Q

MacPherson v Brown (1975) 12 SASR 184 (Federal Court)

A

Facts: No of students, including D took over the administration building at Flinders Uni protesting the CIA links of senior lecturer.
V involved in re-occupation of building by uni officials was surrounded by no. of students who for 15 min prevented him from passing and caused him fear to personal safety. No physical contact made.
Issues: Is recklessness a mens rea state assault.
Principle: Assault can be committed recklessly where def, while not desiring to cause apprehension of immediate violence realises that his conduct may possibly be dong so and yet persists with it.

55
Q

Zanker v Vartzokas (1988) 34 A CRim R 11 (NSW)
Zanker v Vartzokas (1989) SASC 795 (Appeal successful).

A

F: Young woman accepted lift from accused. While van was moving, accused accelerated that vehicle saying: ‘I’m going to take you to my mate’s house. He will really fix you up.’ Fearful she jumped out of car.
Held: Assault proved, conviction occasioning actual bodily harm should have been recorded - originally.

56
Q

s 266 - duty provision - what are the elements?

A

1 Dangerous thing
2 Control (duty)
3 Breach (causation)
* Duty of person in charge of dangerous things. Criminal negligence provision and also element of causation. If criminally negligent than causation met.

57
Q

R v BBD [2006] QCA

A

F: grandmother babysitting grandchildren, who were playing with forklift. Granny was ill and had to go to the toilet.
Forklift was dangerous thing, control of it and breach or cause. See s 266
* In obiter - Danger in assuming someone is in control uncritically.
No breach found upon appeal.

58
Q

Houghton v R (2004) SCWA

A

F: H did not tell partner he had HIV (death sentence) - see S 1(4) defines serious disease.
s 297 - GBH element of ‘unlawful’ had not been put to jury. Held: criminal negligence, seminal fluid (bodily fluid) = dangerous thing.
Unlawful was in issue and means positively proscribed (forbidden) by law. In order to meet the element, explicit, that something was ‘unlawful’. What needed to be shown was breach of duty (duty provision). Prosecution must prove beyond reasonable doubt. See s 266 duty provision - must go there. Not an offence provision. Need to figure out the ‘dangerous thing’ and did by reference to NZ authority. H had control. Had unprotected anal sex and breached his duty. *Had not proven element of unlawful. It was assumed in absence of defence.

59
Q

s 268 Killing a person is unlawful (duty provision)

A

Unlawful unless authorised, justified or excused (self-defence, excuse - emergency, duress, authorised - shooting under police powers).

60
Q

What makes assaults unlawful?

A

s 223 Assault is unlawful - unless authorised or justified or excused by law… although it is done with the consent of another.
If consented to (see Lergesner v Caroll) - consent that has been vitiated by fraud. If consent as matter of fact, then NOT assault.
s 222 defines assault and 223 makes it unlawful.

61
Q

What does vitiated mean?

A

Destroy or impair the legal validity of.

62
Q

Beckwith v Queen (1976) HCA 55; 135 CLR 569

A
63
Q

R v Barlow (1997) 188 CLR 1 per Kirby J

A

F: tried jointly with other prisoners over the death of Vosmaer. Barlow’s co-offenders found guilty of murder. B pleaded not guilty, but found guilty of manslaughter. Prosecutor contended that B and others lured V to the gym for express purpose of kill. B did not ‘intend’ to kill.

64
Q

Lewis v WA [2008] WASCA

A

Significance of case is that GBH injury assessment, as to the seriousness of injury made without reference to availability of medical treatment. So without considerations of medical treatment the injury is assessed as permanent injury to health and …

65
Q

s 323 Indecent Assault

A

A person who unlawfully and indecently assaults another is guilty of crime and liable … 5 yrs.
*builds on s 222.
*consent is different from assault

66
Q

s 324 Aggravated indecent assault

A

(1) A person who unlawfully and indecently assaults another… in circumstances of aggravation … 7 yrs…

67
Q

Breach - general test?

A

grave moral culpability, gross disregard for human life and safety - goes to facts and findings in key cases.
* If unlawful element met, then legal causation too.

Criminal Law I (6 decks)

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