NONFATALOFFENCES AGAINST THE PERSON Flashcards
Assault
Definition
Assault occurs when a defendant either intentionally or reck-**lessly causes another person to apprehend (believe that they will receive) **immediate unlawful **personal violence.
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actus reus of assault
- The defendant’s conduct must make the victim believe that the defendant will apply unlawful force upon them imminently. Apprehension equates to belief; the victim need not experience fear.
- Words Can Be Suffcient
Words themselves can be sufcient to be an assault so long as the circumstances are such that the victim be-lieves that violence is imminent. - Words Can Negate Assault
Words can also negate an assault if it stops the victim from believing that they will be immediately assaulted. - Conditional Threat Can Be Suffcient
If the threat is conditional, but might happen, that would be sufficient for assault.
mental state of assault
Assault can be caused intentionally or recklessly. The defen-dant must either (1) intend the victim to apprehend the appli-cation of unlawful violence, or (2) foresee that their actions
could make the victim apprehend the application of unlawful violence, and it must be an unreasonable risk to take.**
Battery
Definition
Battery occurs when a defendant either intentionally or recklessly applies unlawful personal force upon another person
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actus reus of Batter
- The defendant must **make contact with **the victim’s body, and the contact must be unlawful.
- Application of force is defned very widely. Any** unwelcome contact** with the victim’s body is sufficient.
- Contact May Be Direct, Indirect, Delayed, or by Omission
The contact can be direct or indirect, for example, poking a victim with a stick or setting a dog on the victim. It can even occur where the battery will be delayed, for exam-ple, where a defendant digs a hole so that the victim will fall into it later. Contact can also be found by omission.
Mens Rea of Battery
Battery can be caused** intentionally or recklessly.** The de-fendant must foresee the risk that their actions could cause them to apply unlawful force upon the victim, and this must be an unreasonable risk to take.
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Consent to Assault and Battery
*Expressed or implied to the defendant; and
*Given by someone with suffcient capacity, freedom, and information to make a choice.
OFFENCES AGAINSTTHE PERSON ACT
1861 SECTION 47—ASSAULT OCCASIONING ACTUAL BODILY HARM (‘ABH’)
Actus Reus
The actus reus of assault occasioning actual bodily harm (‘ABH’) is that of assault and/or battery, plus causing actual bodily harm.
The requirements of factual and legal causation must be satisfIed, and an injury satisfying the defnition of actual bodily harm must be present.
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ABH Injuries
ABH means any hurt or injury calculated to interfere with the health or comfort of the victim. It must be more than merely trifing. Sufcient injuries include:**
*Scratches, grazes, and abrasions
*Bruising and swelling;
*Temporary loss of consciousness; and
*Psychiatric injury, but not fear or anxiety.
Mens Rea of ABH
The mens rea of ABH is that of assault or battery; there are no additional mens rea requirements regarding the injury itself.
Therefore, intention or recklessness as to whether a victim will apprehend the infiction of immediate unlawful violence (assault) or the application of unlawful force (battery) is sufcient. A defendant does not need tointend or foresee ABH injuries.
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OFFENCES AGAINST THE PERSON
ACT 1861 SECTION 20—WOUNDING OR
INFLICTING GRIEVOUS BODILY HARM (‘GBH S20’)
Actus Reus
The actus reus of wounding or inficting grievous bodily harm (‘GBH s20’) is causing (applying the test for factual and legal causation) either (1) a wound or (2) grievous bodily harm.
- Wound
A wound is any injury where both layers of the skin are broken, for example, a stab wound. Bruising (breaking only one layer) is not enough. - GBH Injuries
GBH injuries are defned (rather unhelpfully) as ‘serious harm’. These injuries are more serious than ABH injuries.
Long periods of unconsciousness, broken bones, and serious **psychiatric injuries **have all been held to be GBH.
Mens Rea GBH S20
The mens rea for GBH s20 is intention or recklessness re-garding some harm. The defendant does not need to foresee the level or type of injury caused. The mens rea requirement will be satisfed if the defendant intends to cause some harm, or if they foresee the risk that some harm may be caused and it is unreasonable in the circumstances known to the defendant to take that risk.
OFFENCES AGAINSTTHE PERSON ACT
1861 SECTION 18—WOUNDING OR CAUSING GBH WITH INTENT (‘GBH S18’)
Actus Reus
The physical act of wounding or causing grievous bodily harm with intent (‘GBH s18’) is identical to that of GBH s20: causing either a wound or grievous bodily harm.
Mens Rea
GBH S18
For GBH s18, a defendant must (i) intend to cause serious harm or (ii) foresee the risk of some harm and intend to resist lawful apprehension. If there is no intention to cause serious harm (or no intention to resist lawful arrest), a defendant will not be guilty of GBH s18, but may be guilty of GBH s20.
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CONSENTTO ABH AND GBH
For consent to be a valid defence to ABH, GBH s20, or GBH s18, the victim’s consent:
1. Must be expressed or implied to the defendant in a legally recognised manner;
- Must be effective and the victim must have the** capacity, freedom, and information** to make a choice; and
- Must come within a legally recognised category.
Surgery
A surgeon must, by virtual necessity, be able to cut a patient to operate.
Body Modifcation
Persons over 18 can allow themselves to be tattooed and pierced.
Religious Practices
Circumcision of males for religious reasons is allowed. Acts of religious fagellation are also allowed.
Sports
In sports such as rugby and hockey, players impliedly consent to the contact that accompanies the sport. It would be impossible to play the sport if that were not the case. Moreover, the law will not interfere where one player causes another injury when their actions are slightly outside the rules of the game.
Intentional Injuries in Sports
A player typically does not consent to another player in-tentionally causing injury in a game like rugby. Therefore, a player who intentionally causes injury could be prosecuted. However, there is a clear exception in sports such as boxing and martial arts in which the aim of the sport is to hurt one’s opponent.
Horseplay
Physical injury is an accepted risk in horseplay, such as children playing in the school playground.
Sexual Gratifcation
A person consents to running the risk of sexual infection if the other party fully informs them. For example, if a person is informed that a sexual partner is HIV+, and the person contracts HIV as a result, there is no crime, because the consent is valid. However, it is against the law for someone intention-ally to infect another with a sexually transmitted disease if the perpetrator is aware they have a sexually transmitted disease and the other party is not aware.
The courts have held that certain sadomasochistic practices that involve serious violence can be prosecuted, as there is a public interest element in preventing creation of a ‘cult of violence’.
