Assault and Sexual Assault: Types, Elements, and Legal Consequences, Lecture notes of Law

Download Assault and Sexual Assault: Types, Elements, and Legal Consequences and more Lecture notes Law in PDF only on Docsity! Assault and sexual assault - Varied area of law – essentially split into “common assault” and “compound/aggravated assault” and “harm offences” - Common assault – actual force, or the threat of force - Compound assault – assault plus something else (e.g. assault occasioning particular injuries, assaults with specific intent, assault on certain persons, etc etc). Must prove assault plus the additional element. - Harm offences – e.g. offences where either grievous bodily harm or wounding has occurred. Unlike compound assaults, these offences do not need proof of assault plus the additional element, they only need proof of the GBH or wounding (even though in reality it is most likely that an assault has occurred which has inflicted the GBH or wounding). Common Assault Crimes Act 1900 (NSW) Division 9Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. - The Crimes Act 1900 does not provide a definition for “assault”, so the definition comes from common law. Common assault can be broken into two categories: o The intentional or perhaps reckless application of force to the body of another person without consent (historically called battery) o Intentional or perhaps reckless conduct which puts another person in apprehension of immediate and unlawful personal violence (historically called assault). - Darby v DPP (NSW) (2004) 61 NSWLR 558 per Giles JA: ”An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force… [I]n common parlance the infliction of unlawful force is spoken of as an assault. This usage has crept into the law, as a convenient abbreviation… and in legislation.” Assault by force Physical element (actus reus): - The merest physical contact may be sufficient. o Collins v Wilcock [1984] 3 All ER 374: Police officer (P) approached a woman (D) she believed to be a prostitute; when D went to walk away, the police officer grabbed D’s arm to stop her walking away, D turned and scratched police officer, who charged D with assaulting a police officer. However, court held that since P was not exercising any lawful right to come into contact with D, P had first committed battery against D, negativing D’s later conduct. Goff LJ said the slightest touching will constitute battery, although he also said there is an exception for contact which is generally acceptable in everyday life. - There must be a positive act. An omission will not be enough to constitute an assault. o Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439: Accused accidentally drove onto police officer’s foot, but then refused to drive off it. Question was whether this was assault : Did actus reus and mens rea match up, as intention only came about after accused was on the foot? Did the actus reus finish once he had driven onto the foot, making his refusal to drive off an omission, or was there a continuing act?  James J: “To constitute the offence of assault, some intentional act must have been performed: a mere omission to act cannot amount to an assault.” - The act does not need to be hostile. o Boughey v R (1986) 161 CLR 10 per Mason, Wilson and Dean JJ: “It has never… been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery.” - Generally the positive act will be direct, but it does not need to be direct. o R v Martin (1881) 8 QBD 54: D placed iron bar over exit of a theatre and then shouted fire. Several people were severely injured. o DPP v K [1990] 1 WLR 1067: A minor placed acid into a hot air hand drier in the boys toilets at school. Someone turned it on acid splashed on them. o Gibbon v Pepper (1695) 2 Salk 637: Horse bolted and ran over someone – however the D (who had been riding the horse) was found not guilty because it was an accident, so D not directly at fault. - There must be no consent. Consent will negative common assault. There are situations in everyday life where consent may not be expressed but it is implied. o Collins v Wilcock [1984] 3 All ER 374 per Goff LJ: “... most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street: not can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped.” o Boughey v R (1986) 161 CLR 10: A person is thought to have given implied consent to “commonplace intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus” o Pallante v Stadiums [1976] VR 331: Notion that within a sporting context, implied consent can negative assault – if it occurs within the rules and intendment of the game. This case focused on whether boxing was illegal and if the blows inflicted by boxers amounts to there is a lack of certainty on this point.  Brady v Schatzel [1911] St R Qd 206: D pointed a gun at the victim (a police officer). V did not try to protect himself – said he was not afraid of D shooting him. However, it was held nonetheless that D had committed assault – as there was still an apprehension of immediate violence.  Barton v Armstrong [1969] 2 NSWR 451: Taylor J: “Threats which put a reasonable person in fear or apprehension of physical violence can constitute assault, although the victim did not know when that physical violence may be affected... While plaintiff may be given an alternative to the suffering of physical harm he might nevertheless entertain a real fear that he would suffer physical violence.”  MacPherson v Brown (1975) 12 SASR 184: Zelling J – victim must either fear or apprehend immediate physical violence.  Ryan v Kuhl [1979] VR 315: D and V were in neighbouring cubicles in a public toilet. D thrust a knife through a hole in partition between the cubicles to stop V from annoying him. V testified the knife did not frighten him, as he realised that as long as he remained in the cubicle, D could not harm him with the knife. It was held that as the D’s conduct did not cause fear of harm in the victim, there could be no charge of assault. o Has been suggested that the victim’s apprehension of violence must be reasonable: Brady v Schatzel [1911] St R Qd 206 and Barton v Armstrong [1969] 2 NSWR 451. o Note the different offences of stalking and intimidation: Crimes (Domestic and Personal Violence) Act 2007. - Must be an apprehension of immediate violence. However, the definition of ‘immediate’ does not necessarily mean instantaneous, and has been broadened out in certain cases. o General rule (outlined in Knight (1988) 35 A Crim R 314) – the threat must raise expectation or apprehension of immediate (imminent) bodily harm; threats of future violence or future bodily harm will not normally be sufficient to establish assault.  Therefore, as Knight established, telephone calls will not normally be sufficiently immediate for criminal liability in assault – although Barton v Armstrong indicates this is not always the case, and that there might be assault if the accused has some form of power of the victim and is in a position to carry out the threats. o In some cases, the application of the concept of immediacy has been given a wide interpretation – the notion of an “immediate and continuing threat”. A present fear of future harm, therefore, may be sufficient, especially in situations where the victim cannot get away.  See R v Secretary (1996) 5 NTLR 96 above, where it was held that assault continued even though the man who made the threats had gone to sleep. Notion of continuing threat.  Zanker v Vartzokas (1988) 34 A Crim R 11: Woman accepted lift from D, who offered her money for sex. She refused. He would not let her out of the car, said he was taking her to a “mate’s house” and that the mate “will really fix you up”. The threat of the circumstances put her in such fear that she opened the door and leapt out, suffering bodily injuries. While the driver’s threats were not of instantaneous violence, White J held there was a “present fear of relatively immediate imminent violence instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur… the fear had to be a present fear of physical harm in due course within the parameters of the incident of unlawful imprisonment - but the feared physical harm did not have to be immediate. The threat could operate immediately on the victim’s mind but in a continuing way so long as the unlawful imprisonment situation continued.” - Must be without consent. Mental element - MacPherson v Brown (1975) 12 SASR 184 o Mental element is intentionally or recklessly causing another person to apprehend immediate and unlawful violence. o In this case, student was convicted of assaulting a lecturer – the lecturer had been surrounded by protesting students who prevented him passing, causing him to fear for his personal safety. He was allowed to pass after about 15 minutes. o Bray CJ: Assault covers intent and recklessness. In this case, recklessness only covers situations where the accused turned their mind to the possibility that the victim would be in fear of immediate violence, and does not cover situations where the accused ought to have foreseen this (i.e. objective standards). “It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable and prudent man would have intended, known and foreseen in the circumstances.” Compound assaults - Assaults causing particular injuries o Crimes Act 1900 s 59: Assault occasioning actual bodily harm - Assaults with further specific intent o Crimes Act 1900 s 58: Assault with intent o Crimes Act 1900 s 61K: Assault with intent to have sexual intercourse - Assaults on certain victims with special status o Crimes Act 1900 s 60: Assault on police officers (cross-over with s 58) - Assaults in particular circumstances o Crimes Act 1900 s 59A: Assault during public disorder o Crimes Act 1900 s 60E: Assaults at schools - Assaults with a sexual component o Crimes Act 1900 Division 10 - With each compound assault, it is necessary for the prosecution to prove the elements on assault, as well as something additional. Assaults with further specific intent Crimes Act 1900 (NSW) 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. - Crimes with further specific intent have an additional mens rea element but not actus reus. Assault occasioning actual bodily harm Crimes Act 1900 (NSW) 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. - In addition to assault, there is the physical element of actual bodily harm. o In addition to common assault, there are three main ‘harm’ elements: actual bodily harm, grievous bodily harm and wounding. GBH and wounding will be dealt with in ‘Harm Offences’ o Actual bodily harm defined in Donovan [1934] 2 KB 498, a case where the accused beat a 17 year old girl with a cane for the purposes of sexual gratification, apparently with her consent. Court held that in cases of actual bodily harm, consent is irrelevant, and defined actual bodily harm. Swift J: “[B]odily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”  Actual bodily harm may include psychiatric injury. In Chan- Fook [1994] 2 All ER 552 Court of Appeal held the “phrase