Non-fatal offences

Question 1

What is the offence of common assault?

Answer 1

Any act which causes another to apprehend IMMEDIATE and UNLAWFUL violence

Question 2

Can you assault someone by an omission?

Answer 2

No

Question 3

If you do an act INTENDING or being RECKLESS as, to cause another person to APPREHEND immediate violence but that person does not actually APPREHEND it, are you guilty of a common assault?

Answer 3

No; the person must APPREHEND it. If you threaten someone but they are not think it is going to immediately happen, no assault. If you try and harm someone but they are compliantly unaware of it happening and miss the act, and therefor not aware it is happening, no offence.

However, if you do something without the intent to cause them to apprehend, but recklessly do, it is still an offence

Question 4

Does the victim need to be in FEAR for a common assault to take place?

Answer 4

No; they fact they believe violence is going to take place IMMEDIATELY is enough. So if someone thinks they are going to get in a fight because they are threatened but actually wants that fight it is still an assault.

Question 5

Does the violence have to be a certainty for there to be an assault?

Answer 5

No; the fear of potential immediate violence is enough

Question 6

What does immediate mean?

Answer 6

It is unclear but generally, within a minuet or two can be accepted. Anything in the distant future is not

Question 7

Can a conditional threat amount to an assault?

Answer 7

Yes provided it is an immediate threat ( I will do X right now if you don’t do Y). In circumstances where the threat is that I would do something if not for something else happening, it would not. In that case they are essentially saying they would, not they will, so no immediacy.

Question 8

What is the offence of battery?

Answer 8

When someone

• intentionally or recklessly
• inflicts force
• on another

Question 9

What is the extent of the use of force needed to commit a battery?

Answer 9

• Any force of any magnitude; it need not be a strong force or result in injury
• it need not been anticipated and can be done without warning
• it can be done on things attached to the person such as clothing, not necessarily direct contact with the body
• it can be done directly through something else (such as using force on one person and them ending up contacting another person as a direct result)
• you can also cause someone to have force used on them by not telling them something (such as a needle in your pocket when asked)

Question 10

What is the role of consent in the defence against assaults

Answer 10

Consent is a viable defence against assaults

• there is an implied consent to everyday “touching” such as on a crowded train platform and you might bump into someone
• tattooing (including ritual branding), medical procedures and contact sports all allow for force to be used with complied or specific consent
• however, this consent only extends to what is reasonable under the circumstances of that scenario and if you breach what is “reasonable” it will become and assault (such as using force after a game ends or a doctor inappropriately touching a patient)
• Fraud can invalidate consent but only if there is a false representation as to who you are and what you are doing; see the dr who lied that she was accredited to practice and saw patients. She did not lie about her qualifications or quality of work, only that she was lawfully allowed to do it. This did not invalidate the use of force as she was a Dr and did the work as required. If she wasn’t a dr then it would be and assault
• actual bodily harm will normally invalidate consent

Question 11

What is reasonable punishment of a child?

Answer 11

The use of force on a child up the level of a common assault can receive a defence if reasonable punishment provided…

• the person is a parent or acting in their place (teacher, etc)
• injuries amount to no more than reddening of the skin
• are trifling or transient

The use of a weapon to cause such injuries might invalidate this defence

Question 12

What is the level of harm needed for an ABH?

Answer 12

Actual bodily harm has no definition other than it should interfere with the comfort of the victim. It includes…

• psychological harm greater than fear, distress or panic such as shock or mental trauma.
• momentary loss of consciousness
• substantial cutting of hair or fingernails without consent

Question 13

What is the offence of GBH?

Answer 13

Any person who…

• maliciously
• unlawfully
• wound
• inflight GBH
• on another
• WITHOUT A WEAPON or INSTRUMENT

…is guilty of an offence

Question 14

What does malicious mean?

Answer 14

To be aware that your action will cause SOME harm; no necessary serious harm or wounding, just that it will do some harm to the person

Question 15

What is wounding?

Answer 15

This is the breaking in the continuity of the skin. For the offence of wounding it should be reserved for more serious results and if the break in the skin is more mini or, dealt with as a S39 or S47 assault. This does not include bruising

Question 16

What are GBH injuries?

Answer 16

There are serious or really serious harm. These include permanent injuries, substantial loss of blood, broken bones, permanent loss of function or disability and even a cumulative amount of minor wounds. It can even include the transmission of STI’s, especially of deliberate. In this instance informed consent can be held as a defence where the suspect discloses the disease. It can also apply where a 3rd party discloses it or where it should be obvious from the signs available

Question 17

What is the offence of grievous bodily harm with intent?

Answer 17

Any person who…

• maliciously
• unlawfully
• by any means
• wounds
• causes GBH
• to any person
• with intent to cause GBH

OR

• prevent the lawful apprehension detention of any person (including them)

…is guilty of an offence

Question 18

What is the impact of the lawfulness of the arrest on the notion or resisting arrest?

Answer 18

The arrest or detention must be proved to be true before anyone can be resisting it. However, they do not have to KNOW it was lawful, it just has to be

Question 19

What is the offence of assault with intent to resist arrest?

Answer 19

Any person who…

• assaults ANY person
• intending
• resist apprehension
• resist detention
• of THEM or ANOTHER
• and that arrest is LAWFUL

…is guilty of an offence

Question 20

Who can be assaulted as part of an offence of assault to resist arrest?

Answer 20

ANY OERSON LAWFULLY MAKING THE ARREST; this includes even members of the public who are excising powers. Provided it is established as lawful, that is all that matters.

Question 21

Who can commit the offence of assault with intent to resist arrest?

Answer 21

ANY PERSON who makes the assault and has the required intent to resist. It does not matter if the person actually being arrested is involved or even knows about it. The genuine belief, as a mistake, that the arresting person does not have the power to do it is not enough for a defence. Neither is ones own self belief they are innocent. Being innocent of the offence is not a defence of the arrest is lawful

Question 22

What is the offence of assault on police?

Answer 22

Any person who…

• assaults a police officer
• anyone assisting them
• in the lawful execution of their duty

…is guilty of an offence

Question 23

To what extent can an officer be acting outside the lawfulness of their duty?

Answer 23

Any minor or inadvertent act can take them beyond their duty, including assault, unlawful arrest and trespass. Where an officer is assaulted in response to a physical act they do, the act must be shown to be lawful for the offence to be made out

• remember officers have no power to physically hold someone whilst carrying out background checks.
• remember a custody officer is entitled to believe an array is lawful at all times so if they get attacked the offence is committed regardless of if the arrest was lawful
• there is no need to prove the defendant knew the officer was an officer or acting within their duty. It just needs to be a fact they are

Question 24

What is the offence of obstruction?

Answer 24

Any person who…

• resists
• wilfully obstructs
• an officer
• anyone assisting them
• in the lawful extraction of their duty

…is guilty of an offence

Question 25

What forms can obstruction take?

Answer 25

• informing about a speed trap (provided the person is actually speeding)
• tipping off someone about to commit a crime
• drinking alcohol before a breath test
• deliberately providing misleading information to police
• it is not an offence to fail to provide information or advise someone not to speak (as long as there is no obligation to do so)
• it is not obstruction if the person was genuinely trying to help the police, regardless if the outcome

Question 26

What is the offence of threats to kill?

Answer 26

A person who…

• without lawful excuse
• makes to another
• a threat to kill
• that person
• or a third party
• intending
• that person to fear it will be carried out

…is guilty of an offence

Question 27

How can you make a threat to kill?

Answer 27

Any way; including by sending of letters and text messages. You only need the intent and it does not matter if the recipient fears it or not. The threat can be immediate or in the future but cannot be made by simply passing on the threat on behalf of another, provided it is not your intent. You also cannot threaten an unborn child (through the mother) before it is born. Possibly if you intend to carry it out after it is born.