Law of Crime 4

8/13/2019 Law of Crime 4

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NON-FATAL OFFENCES AGAINST THE PERSON

COMMON ASSAULT

S39(1): A person convicted of common assault is liable to beimprisoned for up to 2 years, or 3 years where the victim was a

family member of the offender at the time of commission of theoffence

S39(2): !"amily member of the offender# means:

(a) a spouse or former spouse of the offender$(b) a child of whom the offender, spouse or former spouseof the offender is the parent or %uardian$

(c) a child who normally or re%ularly resides with theoffender, spouse or former spouse of the offender

&'ote: !spouse# is a person of the oppositese cohabitin%

with as husband or wife defacto of *

Assault by threat of forceis any act committed intentionallyor rec+lessly which puts another person in apprehension of

immediate and unlawful personal violence

Assault by use of forceis the intentional or rec+less causin%of unlawful force to be applied to the body of another

without consent

PHSICAL ELEMENTS

Threat of force

R v McNamara: Assault involves a positive act that creates in the

victim an apprehension of immediate violence

ositive act

-raditionally, some form of positive act (e% a %esture) is

re.uired

Barton v Armstrong: /ere words can amount to assault

under certain circumstances 0 phoned threatened them with violence

-he words are seen in terms of a pattern of intimidatory

conductnot mere words, but a positive act

R v Ireland: here the ma+in% of silent phone calls caused

to apprehend immediate personal violence, is %uilty ofassault

ictim#s state of mind: Apprehension of violence

Brady v Schatzel: Apprehension of violence may eist

without fear

4ncertain whether the apprehension must be reasonable

Barton v Armstrong('S S5) re.uires reasonableness MacPherson v Beath(SA S5) does not re.uire it

-hreat of immediate violence

Knight: -he threat must be of immediateviolence, not futureviolence

Zanker v Vartzokas: A threat of imminentviolence will

suffice

0 accepted lift from

0 threatened future violence and accelerated the car

Since was imprisoned could not escape, the threat

was of imminent violence assault

Rozsa v Samals: A conditionalthreat will suffice if thedefendant had no ri%ht to impose the condition

Police v !reaves

0 threatened to stab 2 policemen if they came anynearer

0olice did not fear imminent attac+

had no ri%ht to impose the condition 6 olice

apprehended immediate violence assaulted police

7mpty threats

R v "veringham: -he defendant does not have to be able to

carry out his threat

pointed a toy pistol at %uilty of assault

Use of force

hysical element is the unlawful application of force on

another#s body

4se of force may be lawful if:

8t is part of ordinary social activity (Boghey v R)$

8t is eercised in a lawful power of arrest (reasonableforce allowed)$

8t is used in selfdefence$

8t is used reasonably and moderately to chastise children$

8t was consented to by the victim (see net pa%e)

FAULT ELEMENTS

8ntention

#agan v Metro Police: An intention to effect unlawful

contact, or to create apprehension of unlawful contact, will

satisfy fault for assault

8ntention here refers to the accused meaningto perform

the condct

Boghey v R: -he intent is not re.uired to be hostile

ec+lessness

e%ree of foresi%ht re.uired is uncertain

Macpherson v Bro$n: "oresi%ht of thepossi%ilitythatthe victim would apprehend imminent violence is

sufficient fault for assault &;/: wei%ht of commonlaw authority is in favour of this*

R v Venna: "oresi%ht ofpro%a%ilityis re.uired

AGGRA!ATE" ASSAULTS

8t is necessary to prove the fault element of common assault, but

strict liability may apply to a%%ravatin% elements

S#$: Assault occasionin% actual bodily harm

< yrs ma, =yrs ma if victim was under 12

&olter: A%%ravatin% element of !occasionin% actual

bodily harm# is one of absolute liability

R v 'onovan: !abh# need not be permanent, but must bemore than merely transient or triflin%

S%&: /alicious woundin%< yrs ma, = yrs ma if victim

was under 12

S%': oundin% with intent to do %bh life imprisonment

S#&: Assaultin% a police officer in the eecution of his duty

< yrs ma

R v Reynhodt

rosecution must prove that intended to assault,but need not prove that +new or suspected that the

victim was a police officer (ie strict liability)

/ere fact that police is offduty doesn#t mean thathe is not actin% in the eecution of his duty

S%(: /aliciously administerin% poison with intent to in>ure

or annoy3 yrs ma


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S')): obbery stealin% from the person 1? yrs ma

S')*: obbery with violencelife


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CONSENT

Co+se+t to co,,o+ assault

(ooley v #itzgerald: 5onsent must be freely %iven and not

procured by force or threats

&larence: "raud ne%ates consent only if it relates to the

natre o) the actitself, or to the identity o) the personwhodoes the act

0 had se with wife () without tellin% her he had

%onorrhoea

0 consented to havin% se with

understood she was en%a%in% in seual intercourse

+new she was doin% so with fraud did not vitiate

consent

"lood%ates ar%ument: 8f fraud about #s disease ne%ated

consent, then seductions with false promises would

ne%ate consent be rape

Papadimitropolos v R: /ista+en belief that boyfriend is ahusband, does not destroy consent to seual intercourse

Co+se+t to assault occaso++. actual bo/ly har, 0s#$1

@eneral rule

R v Bro$n: A victim cannot consent to the infliction of harm

at or above the level of actual bodily harm, unless it falls

within an eception

0s willin%ly participated in sadomasochistic seual acts

of violence

s# acts did not fall within a preeistin% eception

s# acts could potentially cause serious in>ury 6 dan%er

of corruptin% youn% men'ot in public interest to

create an eception applyin% to sadomasochisticactivities

-herefore, the consent was ineffective

ord /ustill (dissentin%):

'o %eneral theory of consensual violence, onlypublic policy

s# acts were private 6 s should be allowed

individual freedomcriminal law should not be

concerned with the acts

7ceptions

ersonal Adornment

R v (ilson 0 branded initials on wife#s (#s) buttoc+s with a

hot +nife

'o lo%ical difference between #s act tattooin%

li+e tattooin%, #s brandin% was lawful

Also, had no a%%ressive intent it was not in the

public interest that consensual activity betweenhusband and wife, in the privacy of their home,

should be a matter of criminal prosecution

lawful&note: this is inconsistent withR v Bro$n*

Sur%ery

Marion*s case: Sur%ery is lawful where performed withpatient#s consent

!ole+t s2orts

@eneral rule: 8f is playin% a violent but sociallyapproved lawful sport within the rules of the %ame,

is assumed to lawfully a%ree to the infliction of in>ury byreason of participation

R v &oney: 5onsent cannot be %iven to blows li+ely to

produce a breach of the peace

A!*s Re)erence +No , o) -./01: 'ot in public interest to

reco%nise consent to a street fi%ht, because there was no!%ood reason# for the fi%ht

Pallante v Stadim(/c8nerny B) &S585*: 8f appliedforce in a spirit of an%er with the intention to inflict

substantial bodily harm, so as to disable the opponent, itmay be assault

!imelli v 2ohnston(wea+ authority C civil action):

layers in football match do not consent to violenceapplied in contravention of the rules %y an opposing

player $ho intends to case %odily harm

McAvaney v 3igley

5onsent is not confined to harm within the rules

layers consent to violence in breaches of the rules

$ithin reasona%le limits

0urin% a football match, rushed in struc+ a

heavy blow to #s head which caused bro+en >aw

0 wron%ly believed he needed to protect a fellowplayer from assault

Deld C the breach of rules was reasonable

&4se epert evidence to distin%uish between

reasonable breach of rules completely outsiderules*

STAL3ING

S19AA(1) 55A: A person stal+s another if:

(a) the person, on at least two separate occasions$

i follows the other$ii loiters outside the place of residence of, or a place

fre.uented by, the other$

iii enters or interferes with property in possession ofthe other$

iv %ives offensive material to the other$ or leavesoffensive material where it will be found by, %iven

to or brou%ht to the attention of the other$v +eeps the other person under surveillance$ or

vi acts in any other way that could reasonably beepected to arouse the other person#s apprehension

or fear$ a+/(b) the person (i) intends to cause serious physical or mental

harm to EanyoneF$ or (ii) intends to cause seriousapprehension or fear

"OMESTIC !IOLENCE

olice traditionally reluctant to interfere with domestic

problems

;ut in 199?, SA arliament attached heavier penalties to

domestic violence: See s39 55A -his is a clear messa%ethat private violence is now re%arded as more (not less)

serious than public violence

'omestic Violence Act -..4enables a person, who has areasonable apprehension of domestic violence, to apply for a

civil court order a%ainst a family member

-he order instructs a family member not to en%a%e invarious forms of threatenin% behaviour (e% approach,

phone, harass, threaten)


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;reach of the civil court order is an offence

Documents

Law of Crime 4