Serious Assaults / Neglect

Question 1

R v Taisalika - Proving intent

Answer 1

R v Taisalika
The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent.

Question 2

Define with case law:

• Bodily Harm
• Grievous Bodily Harm
• Wound
• Maims
• Disfigures

Answer 2

• Bodily Harm
  Actual bodily harm may be internal or external, and it need not be permanent or dangerous.

R v Donovan
‘Bodily harm’ … includes any hurt or injury calculated to interfere with the health or comfort of [the victim] … it need not be permanent, but must, no doubt, be more than merely transitory and trifling.

• Grievous Bodily Harm
  Grievous bodily harm can be defined simply as “harm that is really serious”

DPP v Smith
“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

• Wound
  R v Waters
  “A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.”
• Maims
  mutilating, crippling or disabling a part of the body so as to deprive the victim of the use of a limb or of one of the senses.

-Disfigures
to deform or deface; to mar or alter the figure or appearance of a person
The word ‘disfigure’ covers “not only permanent damage but also temporary damage”.

Question 3

Discuss - Facilitate

Answer 3

To “facilitate” means to make possible, or to make easy or easier.

Question 4

Discuss - Imprisonable Offence

Answer 4

Any offence which is punishable by a term of imprisonment

Question 5

Discuss - Avoid Detection, Avoid arrest (s191(1)(b) CA61)

Answer 5

Avoid Detection / Avoid Arrest
Offences under s191(1)(b) arise during the commission of an imprisonable offence, where the offender causes the specified harm to prevent himself or another person from being “caught in the act”.

For example, a “look out” knocks a security guard unconscious to prevent him from walking in on a burglary in progress.

Question 6

Discuss - Facilitate flight (s191(1)(c) CA61)

Answer 6

Offences under section 191(1)(c) arise after an imprisonable offence has been committed or attempted. The specified harm is caused to enable the offender or offenders to more easily make their escape, or to prevent their capture.

The prosecution must therefore prove that an imprisonable offence was actually committed or attempted before a person can be convicted of aggravated wounding while escaping after it.

Question 7

3 intents for s191 (Aggravated wounding / injuring)
Case law (R v Tihi - 2 fold test for intent for s191)

Answer 7

• To commit or facilitate the commission of any imprisonable offence;
• To avoid the detection of himself or of any other person in the commission of any imprisonable offence;
• To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence

R v Tihi
The prosecution must satisfy a “two-fold” test for intent:
1. The defendant intended to facilitate the commission of an imprisonable offence (or one of the other intents specified in paras (a), (b) or (c), and
2. He or she intended to cause the specified harm, or was reckless as to that risk.

Question 8

Discuss:

• Stupefy
• Renders unconscious

Answer 8

Stupefy
R v Sturm
To “stupefy” means to cause an effect on the mind or nervous system of a person, which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime.

Renders Unconscious
To “render” means to “cause to be” or “cause to become”. So to render a person unconscious, the offender’s actions must cause the victim to lose consciousness.

Question 9

Discuss - Incapable of resistence

Answer 9

In R v Crossan the defendant, intending to rape the victim, presented a loaded revolver at her and threatened to shoot her unless she submitted to sexual intercourse.
It was held that a mere threat may not in itself be sufficient to constitute “violent means”, but when the person making the threat is brandishing a loaded revolver in circumstances that cause the victim to submit to his will in the belief that he will carry out his threat unless she does so, it can be said that she was rendered incapable of resistance by violent means just as effectually as if she were physically incapable.

R v Crossan
“Incapable of resistance” includes a powerlessness of the will as well as a physical incapacity.

Question 10

Ill treatment neglect of child / Vulnerable adult

s195 CA61

Answer 10

195 Ill-treatment or neglect of child or vulnerable adult

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.

(2) The persons are—
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.

(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.