Download Understanding Assault and Unlawful Physical Contact: Consent, Harm, and Imminence and more Study notes Law in PDF only on Docsity! ASSAULT – DIAGRAM ASSAULT – SUMMARY • S 61 -‐ Common Assault: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. ACTUS REUS 1. Unlawful physical contact (application of force) -‐ Must be a voluntary act (cannot be omission – Fagan – but note flexible use of AR and MR coincidence requirement in that case) -‐ Need not cause harm or injury (can be spitting – see DPP v JWH) -‐ Application of force can only give rise to criminal liability if it occurs without the other person’s consent (express or implied – the circumstance) 2. Act creating apprehension of imminent unlawful physical contact -‐ D may be guilty of assault even if no contact is made with/force is applied to another person -‐ Words alone in inappropriate circumstances can constitute assault at common law (Barton v Armstrong) -‐ Where D creates in V an apprehension of imminent (immediate) unlawful contact -‐ Requires a positive act (Fagan) – but there is a broad definition (see Ireland and Burstow) -‐ IMMINENCE: o Knight: Threatening & abusive phone call, absent the potential for immediate violence, did not constitute assault o Zanker v Vartzokas: Verbal threat, within the context of continuing unlawful imprisonment, constituted a threat of immediate violence, consequently injury sustained escaping = assault occasioning ABH o Ireland & Burstow: Silent phone calls may constitute an assault depending on the facts MENS REA P must prove either that D: 1. Intention: Intended to effect unlawful contact; or create apprehensions of imminent unlawful contact; or 2. Recklessness: was reckless as to whether his/her actions would effect unlawful contact; or create apprehensions of imminent unlawful contact. Subjective ! wether D knows could give V reasonable ground of apprehension RECKLESSNESS ! foresight of a possibility (negligence insufficient – MacPherson v Brown) CL: Particular form of recklessness is inadvertent recklessness. But, also see CA s 4. AGGRAVATED ASSAULTS ss 32 -‐ 61 • Presence of one of more factors o Harm caused o Harm intended (or inflicted recklessly) o Method used (e.g. weapon) o Status of victim (e.g. police officer) o Setting (e.g. school, during public disorder, etc) • HARM o Actual Bodily Harm (ABH) -‐ defined in CL as “any hurt or injury calculated to interfere with the health or comfort of the prosecutor…need not be permanent…but more than merely transient and trifling (Donovan); can be a psychiatric illness (Ireland & Burstow). No statutory MR – look to case law. o Grievous Bodily Harm (GBH) – non-‐exhaustive definition: Crimes Act s 4: “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman...any permanent or serious disfiguring of the person...any grievous bodily disease...really serious" (see DPP v Smith; death of a foetus see King). Can be caused by an omission (s 54) – degree of negligence same for manslaughter (R v D) o Wounding – defined in CL as “an injury involving the breaking or cutting of the interior layer of the skin (dermis) (R v Smith) • Wounding or causing GBH requires intent to cause GBH. Misdirection of intended harm does not negate the intention for the purposes of proving the offence. • “Occasioning” = there must be causation ! assault occasioning ABH is common assault which happens to cause ABH ! MR for that offence is identical to that of common assault (Zanker) ACCEPTABLE VIOLENCE • CONSENT o Absence of consent an ingredient of criminal responsibility – operates like a ‘defence’ o Aggravated assault w/harm caused – consent NO defence (Brown) o Accepted exceptions: tattooing, male circumcision, body piercing, branding spouse (Wilson), sports (Billinghurst), medical procedure (vitiated by mistake as to nature of act/identity of person (Richardson) • CHILD DISCIPLINE o Crimes Act, s 61AA – defence of lawful correction; parents entitled to use reasonable and moderate force to chastise their children ASSAULT – CASES Unlawful physical contact: • Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 (Fagan) o Issue: Was there the necessary coincidence of criminal intent with the physical element of the assault, sufficient to constitute a crime? o Held: No mere omission to act can amount to an assault. But, physical element of assault regarded as a continuing act. Criminal intent formed during the course of continuing act Apprehension of imminent unlawful physical contact: • MacPherson v Brown: An assault is any act, which intentionally or recklessly causes another person to apprehend immediate and unlawful violence of physical contact. The mens rea is D’s intention to produce such a fear/ reckless as to whether their conduct would give rise to such a fear and continues anyway. • Rozsa v Samuels: A threat made in a way that implies that violence will be inflicted only in certain circumstances will meet the definition of assault based on apprehension of immediate violence if the accused had no right to make the condition e.g. going beyond what was reasonable as self-‐defence. • Knight v R (1988) 35 A Crim R 314 (Knight) o Issue: Where a phone call in which threats of violence were made could constitute an assault o Held: Distinction between apprehending immediate violence (AR of CL assault) and immediately apprehending violence (perception of potential victim, may or may not be justified in the circumstances). Victim must reasonably anticipate the threat of force e.g. if caller lived in a neighbouring street. • R v Ireland; R v Burstow [1997] 4 All ER 225 (Ireland & Burstow) o Issue: Can silent phone calls prove a sufficient threat of immediate violence to constitute and assault? o Held: Yes, in certain circumstances they can. Context and facts of each case required. • Zanker v Vartzokas (1988) 34 A Crim R 11 (SASC) o Issue: can a verbal threat constitute a threat of immediate violence? o Held: Yes, within the context of continuing unlawful imprisonment – consequently, an injury sustained escaping immediately after the verbal threat was sufficient to sustain a charge of assault occasioning ABH.