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FACULTY OF LAWS5004 CRIMINAL LAW (OFFENCES & DEFENCES) EXTENDED SUMMARIES

OFFENCES DEFENCES

• (non-sexual) • Provocation • • Self-Defence • Homicide I: • Duress & Necessity • Homicide II: Negligent and • Mental Impairment: Mental illness (insanity) and Manslaughter by Unlawful & Dangerous Act Automatism

• Intoxication and Substantial Impairment by Property offences () • Abnormality of Mind 2

OFFENCES ASSAULT (NON-SEXUAL) (I) ...... ! 15 Act 1900 (NSW) s 61 - Common Assault prosecuted by indictment (1) Assault by Force!...... 15 (a) Definition...... ! 15 (b) of ‘Assault by Force’!...... 15 Spitting as an assault DPP v JWH (unreported, NSWSC, 17 October 1997) (c) Mens Rea of ‘Assault by Force’...... ! 16 (i) Intention!...... 16 (ii) Recklessness...... ! 17 Crimes Act 1900 (NSW) s 4A - Recklessness (2) Assault by Threat of Force...... ! 17 (a) Definition...... ! 17 (b) Actus Reus for ‘Assault by Threat of Force’!...... 17 (i) Positive Act!...... 18 Positive Act Fagan v Commissioner of Metropolitan Police (1962) 1 QB 439 (ii) State of mind of the victim!...... 19 (iii) Imminence/Immediacy!...... 19 Threats made over the telephone Barton v Armstrong [1969] 2 NSWR 452; NSWSC Threats of future violence (distinguished from Barton v Armstrong) Knight (1988) 35 A Crim R 314 Silent Phonecall R v Ireland; R v Burstow [1997] 4 All ER 225; House of Lords ‘Immediate and continuing fear’ Zanker v Vartzokas (1988) 34 A Crim R 11 (iv) Conditional Threats!...... 24 Looking at the words of the threat: Whether D had the right to impose the condition: Rozsa v Samuels [1969] SASR 205 (c) Mens Rea of ‘Assault by Threat of Force...... ! 24 (i) Intention!...... 24 (ii) Recklessness...... ! 25 Must be subjective MacPherson v Brown (1975) 12 SASR 184 (II) COMPOUND !...... 26 (1) Assaults causing particular injuries!...... 26 Crimes Act 1900 (NSW) s 59 - Assault occasioning actual bodily harm (a) Actus Reus for ‘Assaults causing particular injuries’ (s 59)!...... 26 3

(b) Mens rea for ‘Assaults causing particular injuries’!...... 26 (2) Assaults with further specific intent!...... 27 (3) Assault on Particular classes of people!...... 27 Crimes Act 1900 (NSW) s 58 - Assault with intent to commit a serious on certain officers Actus Reus Mens Rea Reynhoudt (1962) 107 CLR 381 Assaults on officers using offensive weapons or dangerous substances Crimes Act 1900 (NSW) s 60 - Assault and other actions against police officers (4) Other Assaults!...... 30 (a) Assaults using offensive weapons or dangerous substances!...... 30 Crimes Act 1900 (NSW) s 4 - Definitions Crimes Act 1900 (NSW) s 33B - Use or possession of weapon to resist arrest etc. (b) Causing Disease!...... 31 Public Health Act 1991 s 11 - Precautions against spread of certain medical conditions (III) HARM OFFENCES...... ! 32 Crimes Act 1900 (NSW) s 4(1) - Definitions (a) Intentional Assault (with ‘specific intent’)!...... 32 Crimes Act 1900 (NSW) s 33 - Wounding or grievous bodily harm with intent (b) Reckless Assault/Wounding...... ! 33 Crimes Act 1900 (NSW) s 35 - Reckless grievous bodily harm or wounding (d) Negligence!...... 34 Crimes Act 1900 s 54 - Causing grievous bodily harm (IV) CONSENT TO HARM!...... 35 (a) General!...... 35 Brown [1994] 1 AC 212 (b) Consent to medical treatment!...... 37 Marion’s Case (1992) 175 CLR 218 (c) The chastisement of children...... ! 38 Crimes Act 1900 (NSW) s 61AA - Defence of lawful correction (V) DOMESTIC AND PERSONAL VIOLENCE...... ! 39 (a) General!...... 39 Crimes (Domestic and Personal Violence) Act 2007 Part 1, s 5 - Meaning of ‘domestic relationship’ Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 11 - Meaning of ‘domestic violence offence’ (b) Stalking and Intimidation!...... 40 Crimes (Domestic and Personal Violence) Act 2007 Part 1, s 7 - Meaning of ‘intimidation’; Part 1, s 8 - Meaning of ‘Stalking’ Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 13 - Stalking or intimidation with intent to cause fear of physical or mental harm (c) Apprehended Violence Orders!...... 41 Crimes (Domestic and Personal Violence) Act 2007 Part 3, s 14 - Offence of contravening apprehended violence order Crimes (Domestic and Personal Violence) Act 2007 Part 4, s 16 - Court may make apprehended domestic violence order; Part 5, s 19 - Court may make apprehended personal violence order (VI) OFFENCES RELATING TO PUBLIC ORDER!...... 43 4

Crimes Act 1900 (NSW) s 93A - Definition; s 93B - Riot; s 93C - Affray; s 93D - Mental Element Under sections 93B and 93C SEXUAL ASSAULT (I) CONTEXTUAL CONSIDERATIONS!...... 44 (a) General!...... 44 The need to address problems associated with investigation and trial process!.44 (b) Law Reform!...... 45 Further amendments!...... 46 (II) THE CURRENT OFFENCES/PRIMARY STATUTORY PROVISIONS....! 47 (A) Primary Offences!...... 47 Crimes Act 1900 (NSW) s 61I - Sexual assault Crimes Act 1900 (NSW) s 61K - Assault with intent to have sexual intercourse Crimes Act 1900 (NSW) s 61M - Aggravated indecent assault Crimes Act 1900 (NSW) s 61O - Aggravated act of indecency (B) Aggravated Sexual Assault!...... 49 Crimes Act 1900 (NSW) s 61J - Aggravated sexual assault Crimes Act 1900 (NSW) s 61JA - Aggravated sexual assault in company ‘Offensive weapon or instrument (s 61J)(2)(b))’!...... 50 Sexual assault ‘in company’...... ! 50 (C) Abolition of the Common Law Immunities!...... 51 Common law immunity for minors Crimes Act 1900 (NSW) s 61S - Offenders who are minors Marital Immunity Crimes Act 1900 (NSW) s 61T - Offender married to victim ACTUS REUS OF SEXUAL ASSAULT!...... 52 Crimes Act 1900 (NSW) s 61I - Sexual assault (a) Sexual Intercourse...... ! 52 Crimes Act 1900 (NSW) s 61H - Definition of ‘sexual intercourse’ and other terms (b) Consent...... ! 52 Crimes Act 1900 (NSW) s 61HA - Consent in relation to sexual assault offences Definition of ‘cognitive impairment’ - relevant to s 61HA(4)(a) Crimes Act 1900 (NSW) s 61H - Definition of ‘sexual intercourse’ and other terms Consent and Submission!...... 54 Mueller [2005] NSWCCA 47 Aiken [2005] NSWCCA 328 Consent induced by and mistake!...... 55 Papdimitropoulos (1957) 98 CLR 249 (c) ‘Assault’ component in indecent assault (S61L)!...... 56 MENS REA OF SEXUAL ASSAULT!...... 57 (a) Intent to have non-consensual sexual intercourse, belief in or knowledge of, consent!...... 57 Crimes Act 1900 (NSW) s 61HA(3) - Knowledge about consent Absence of consent...... ! 57 5

Common law authority for the application of subjective standards (displaced by s61HA(3)(c)) DPP v Morgan [1976] AC 182 Recklessness as to consent...... ! 59 (i) Reckless advertence (subjective advertence) (ii) Reckless inadvertence Kitchener (1993) 29 NSWLR 696 Banditt [2005] HCA 80 Tolmie (1995) 37 NSWLR 660 INDECENT ASSAULT & ACT OF INDECENCY!...... 62 (a) Indecent Assault!...... 62 Crimes Act 1900 (NSW) s 61L - Indecent assault Actus Reus Mens Rea Fitzgerald v Kennard (1995) 38 NSWLR 184 Assault within the meaning of s 61L Consent (b) Acts of indecency!...... 64 Crimes Act 1900 (NSW) s 61N - Act of indecency HOMICIDE I - MURDER PATTERNS OF HOMICIDE!...... 65 A Wallace, ‘Homicide: The Social Reality’ Relationship between victim and offender...... ! 65 Homicide involving intimates!...... 66 Family homicide!...... 66 Femicide!...... 66 Child homicide!...... 66 Killing friends and acquaintances!...... 66 Male Violence...... ! 67 Weapons...... ! 67 ACTUS REUS OF MURDER!...... 68 Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined (a) Volition!...... 69 (b) Death must be of an alive person...... ! 69 Death of child or embryo Crimes Act 1900 (NSW) s 20 - Child murder-when child deemed born alive Person deemed dead Human Tissue Act 1983 s 33 - When death occurs (c) Causation!...... 70 Act or omission causing death Causation Tests...... ! 70 The operating and substantial cause test (favored) R v Smith [1959] 2 QB 35 R v Hallett [1969] SASR 141 The natural consequence test Royall v The Queen (1991) 172 CLR 378 6

The reasonable foreseeability test Royall v The Queen (1991) 172 CLR 378 The various legal tests are discussed in Royall Royall (1991) 172 CLR 378 Hallett [1969] SASR 141 Defendant must take Victim as found...... ! 74 Blaue [1975] 3 All ER 446 Novus Actus interveniens...... ! 75 Acs of the victim R v Bingapore (1975) 11 SASR 469 Acts of a third party 1.) Medical Treatment R v Jordan (1956) 40 Cr App R 152 R v Smith [1959] 2 QB 35 R v Pagett (1983) 76 Cr App R 279 (d) Coincidence...... ! 77 MENS REA FOR MURDER!...... 78 Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined (a) Intention to kill!...... 78 (b) Intention to inflict grievous bodily harm!...... 79 Crimes Act 1900 (NSW) s 4(1) - Definitions (c) Reckless indifference!...... 79 Crabbe 1985 156 CLR 464 Standard of foresight required - ‘Probability of death/GBH’ Wilful Blindness Applying Crabbe in New South Wales!...... 80 Probabilities and Possibilities!...... 81 Boughey (1986) 65 ALR 609 Faure [1999] 2 VR 537, (d) Task for jury!...... 82 CONSTRUCTIVE/ MURDER!...... 83 Mraz v R (No. 2) (1956) 96 CLR Ryan (1967) 121 CLR 205 Munro (1981) 4 A Crim R 238 HOMICIDE II: MANSLAUGHTER Definition!...... 85 Crimes Act 1900 (NSW) s18 - Murder and manslaughter defined INVOLUNTARY MANSLAUGHTER!...... 86 (I) Manslaughter by unlawful and dangerous act!...... 86 (a) Definition & Elements!...... 86 Wilson (1992) 174 CLR 313 (b) Characteristics of the reasonable person...... ! 87 Wills [1983] 2 VR 201 (c) The Unlawful Act...... ! 88 7

Downes (1985) 18 A Crim R 75 Lamb [1967] 2 QB 981 R v Rik [2004] NSWCCA 282 Requirement of directness!...... 89 Dalby [1982] 1 All ER 916 Mitchell [1983] 1 QB 741 Goodfellow (1986) 83 Cr App R 23; Dalby was again distinguished: (II) Manslaughter by criminal negligence!...... 90 (a) Definition and Elements!...... 90 Nydam [1977] VR 430 Lavender (2005) 218 ALR 512 Summary (b) Negligent Omissions!...... 93 Omission cases (establishing duty of care)!...... 93 General care and protection based on relationships: e.g. a duty owed by parents towards their young children R v Russel [1933] VLR 59 Crimes Act 1900 (NSW) s 43A - Failure of persons with parental responsibility to care for child General care and protection which are voluntarily assumed towards a helpless person R v Stone and Dobinson [1977] 1 QB 354 R v Takak (1988) 34 A Crim R 334 PROPERTY OFFENCES (INCLUDING LARCENY) Property Offences in Context!...... 96 LARCENY!...... 97 (a) Definition...... ! 97 Crimes Act 1900 (NSW) s 117 - Punishment for larceny (I) Actus Reus!...... 97 (a) Property must be capable of being stolen!...... 97 Crimes Act 1900 (NSW) s 4 - Definitions - ‘Property’ Things capable of being stolen!...... 97 Exceptions!...... 98 Land (2) Fixtures Crimes Act 1900 (NSW) s 139 - Stealing etc metal, glass, wood etc fixed to house or land Crimes Act 1900 (NSW) s 140 - Stealing etc trees etc in pleasure-grounds etc (3) Animals (4) Intangible property (b) Ownership & Possession!...... 100 (1) Actual Possession...... ! 100 Anic, Stylianou and Suleyman (1993) 61 SASR 223 (2) Constructive Possession!...... 101 Hibbert v McKiernan (1948) (c) Property is taken and carried away (asportation)...... ! 102 Wallis v Lane [1964] VR 293 (d) Property must be taken without consent!...... 102 8

Facilitation & Consent!...... 103 Kennison v Daire (1986) 60 ALR 249 Implied licence...... ! 103 Kolosque v. Miyazaki (unreported NSWSC) Mistaken Consent...... ! 104 Potisk (1973) 6 SASR 389 Illich (1987) 162 CLR 110 Mistake as to identity of transferee Mistake as to the type of property handed over Mistake as to the quantity of the property Riley Principle...... ! 105 Riley [1853] 169 ER 674 (II) Mens Rea!...... 106 (a) Intention to permanently deprive!...... 106 Holloway (1848) 1 Den 370 Phillips & Strong (1801) 2 East PC 662 Intention to return the property!...... 106 Crimes At 1900 (NSW) s 118 - Intent to return property no defence Foster (1967) 118 CLR 117 Exhausting virtue of the property!...... 107 Changing the nature of the property!...... 107 Smails (1957) WN (NSW) 150 Weatherstone (1987) 8 Petty Sessions Review 3729 Fungibles!...... 108 (b) Property must be taken dishonestly or fraudulently!...... 109 Crimes Act 1900 (NSW) s 4B - Dishonesty Freely [1973] 1 QB 530 Ghosh [1982] 1 QB 1053 Rejection of Ghosh Peters (1998) 192 CLR 493 Larceny by finding!...... 111 R v Thurborn (1849) 169 ER 293 R v MacDonald [1983] 1 NSWLR 72; NSWCCA (c) Taking of property must be without a claim of right!...... 112 Fuge (2001) 123 A Crim R 310 EXPANDING THE SCOPE OF PROPERTY OFFENCES...... ! 114 (I) Larceny by a Bailee!...... 114 Crimes Act 1900 (NSW) s 125 - Larceny by bailee (1) Accused was in possession of the property as a bailee Ward (1938) 38 SR (NSW) 308 (2) Accused took or converted the property (3) Accused acted fraudulently (II) Fraudulent Appropriation!...... 116 Crimes Act 1900 (NSW) s 124 - Fraudulent appropriation (III) Joyriding...... ! 116 Crimes Act 1900 (NSW) s 154A - Taking a conveyance without consent of owner 9

(IV) ‘Aggravated’ offences...... ! 118 (a) !...... 118 Crimes Act 1900 (NSW) s 94 - Robbery or stealing from the person Crimes Act 1900 (NSW) s 95 - Same in circumstances of aggravation Crimes Act 1900 (NSW) s 98 - Robbery with arms etc and wounding Crimes Act 1900 (NSW) s 99 - Demanding property with intent to steal DEFENCES: ‘JUSTIFICATIONS AND EXCUSES’ PROVOCATION (I) GENERAL!...... 120 Crimes Act 1900 (NSW) s 23 - Trial for murder-provocation (a) Burden of proof!...... 121 (b) Should partial defences be allowed?...... ! 121 (II) PROVOCATIVE CONDUCT/CIRCUMSTANCES...... ! 122 (a) Provoking Conduct!...... 122 Words alone? Lees [1999] NSWCCA 301 (b) Self induced provocation!...... 123 Edwards [1973] AC 648 Within the sight and hearing of the accused: ‘Hearsay provocation’!...... 123 Quartly (1986) 22 A Crim R 252 Davis (1998) 100 A Crim R 573 (III) THE SUBJECTIVE TEST: TIME & LOSS OF SELF-CONTROL!...... 125 Time Chhay (1992) 72 A Crim R 1 The element of time Loss of self-control R (1981) 28 SASR 321 Criticism of R: (IV) THE ‘ORDINARY PERSON’ TEST!...... 128 Crimes Act 1900 (NSW) s 23(2)(b) - Trial for murder-provocation (1) Gravity of the provocation - how the accused evaluated the provocation!...... 128 (a) Gender & the Battered wife Syndrome (‘BWS’)!...... 129 Osland (1999) 159 ALR 170 (b) Intoxication!...... 129 (c) Homosexual advances!...... 129 Green (1997) 191 CLR 334 (2) Characteristics of the Ordinary Person!...... 130 (a) Ordinary Person test & Characteristics!...... 130 Stingel (1990) 171 CLR 312 Nexus between the subjective and objective tests The objective test 10

Identifying the gravity The characteristics of the ordinary person The characteristic of age Application (b) Ethnicity!...... 132 Masciantonio (1995) 183) CLR 58 Criticism of the objective standard SELF-DEFENCE (AND EXCESSIVE SELF-DEFENCE) (I) GENERAL: HISTORY & REFORM!...... 134 (1) History of Self-Defence!...... 134 Zecevic v DPP (1987) 162 CLR 645 (2) Statutory Reform!...... 134 (a) Self-Defence Legislation...... ! 135 Crimes Act 1900 (NSW) s 418 - Self-defence-when available Crimes Act 1900 (NSW) s 419 - Self-defence-onus of proof Crimes Act 1900 (NSW) s 420 - Self-defence-not available if death inflicted to protect property or trespass to property Crimes Act 1900 (NSW) s 421 - Self-defence-excessive force that inflicts death Crimes Act 1900 (NSW) s 422 - Self-defence-response to unlawful conduct (b) Preceding questions: For what threats can the defendant raise self defence?!.....136 Self-defence and the defence of others Duffy [1966] 1 All ER 62 Self-defence and the defence of property R v McKay [1957] VR 560 Nature of the attack!...... 136 Pre-emptive strikes Unlawfulness (II) THE ‘TWO LIMBS’!...... 138 Crimes Act 1900 (NSW) s 418(2) - Self-defence-when available (a) The Katarzynski test...... ! 138 Katarzynski [2002] NSWSC 613 (1) The accused’s belief in the necessity of response!...... 139 (a) Subjective Test...... ! 139 (b) Battered women’s syndrome!...... 139 State of New Jersey v Kelly (1984) 478 A 2d 364 ‘Battered Wife’s Syndrome’ Landmark Canadian case Lavalle (1990) 55 CCC (3d) 97 Runjanjic and Kontinnen (1991) 53 A Crim R 352 upheld Lavallee Osland (1999) 159 ALR 170 (2) Whether the conduct was a reasonable response in the circumstances as perceived by the accused!...... 142 (a) Reasonableness of response!...... 142 Excessive Self-defence Crimes Act 1900 (NSW) s 421 - Self-defence-excessive force that inflicts death 11

(b) Intoxication!...... 142 (III) THE NEXUS BETWEEN THE OFFENCE AND THE THREAT!...... 143 (a) Nexus between threat & offence!...... 143 Burgess; Saunders [2005] NSWCCA 52 The threshold question The existence of a nexus (IV) ONUS OF PROVING SELF-DEFENCE!...... 144 Crimes Act 1900 (NSW) s 419 - Self-defence-onus of proof Kurtic (1996) 85 A Crim R 57 NECESSITY Origins!...... 146 Dudley and Stephens (1884) 14 QBD 273 *Southwark LBC v Williams [1971] Ch 734, English Court of Appeal (I) ELEMENTS!...... 148 Loughan [1981] VR 443 Rogers (1996) 86 A Crim R 542 Determining whether the accused honestly believed on reasonable grounds that his actions were necessary to avert the threatened harm !...... 150 (a) Objective/Subjective Standard...... ! 150 (b) Factual considerations to determine ‘reasonable grounds’ for defendant’s actions !...... 150 (i) The nature of the emergency...... ! 150 (II) The Accused’s belief in imminence of peril!...... 151 (II) SCOPE OF THE DEFENCE!...... 152 (a) Necessity and prison escapes...... ! 152 Loughnan [1981] VR 443: (b) Necessity and driving offences...... ! 152 White (1987) 9 NSWLR 427 (NSWDC) (c) Medical necessity...... ! 153 Re: A (Children) [2000] 75 CRR (2d) 233 (d) The regulation of abortions...... ! 153 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 DURESS (I) NATURE OF THE DEFENCE!...... 156 (a) General!...... 156 (b) Burden of Proof!...... 156 (II) ELEMENTS...... ! 157 (a) Elements of Duress!...... 157 Lawrence [1980] 1 NSWLR 122 12

The reassertion of the mind The law of duress – three principle elements (b) Nexus between the threat and the commission of the !...... 158 (III) LIMITATION ON THE DEFENCE!...... 158 (a) Type of threat!...... 158 (b) The belief in the threat!...... 158 (c) Continuing and imminent threats!...... 158 Hudson and Taylor [1971] 2 QB 202 (d) The opportunity to re-assert the will!...... 159 Taiapa [2009] HCA 53 (e) Voluntary involvement with a criminal enterprise!...... 160 (f) Duress and Murder!...... 160 (IV) THE OBJECTIVE TEST!...... 162 (a) The person of ‘ordinary firmness of mind’!...... 162 Abusafiah (1991) 21 NSWLR 531 Provocation and duress are not analogous issues Directions relating to duress Directions applied to the facts of the particular case (b) Duress and battered woman syndrome!...... 163 (c) Proof of duress!...... 164 THE ‘INSANITY’ DEFENCE (MENTAL ILLNESS) (I) THE M’NAGHTEN RULES!...... 165 M’Naghten’s Case [1843-1861] All ER Rep 229 (II) ELEMENTS...... ! 166 (a) Pathology: Disease of the mind!...... 166 (c) Cognitive Impairment!...... 166 Porter (1933) 44 CLR 182 Element (1): Nature and quality of the act – physical nature and consequences rather than moral aspects Element (2): Knowledge of wrongfulness The definition of ‘wrong’ Cheatham [2000] NSWCCA 282 (c) Burden of Proof!...... 169 (d) Scope!...... 169 Kemp [1957] 1 QB 399, (e) Fitness to Plead...... ! 170 AUTOMATISM (I) GENERAL!...... 171 (a) Definition...... ! 171 (b) Presumption of mental capacity: the evidential burden!...... 171 (c) Burden of proof!...... 171 Woodbridge [2010] NSWCCA 185 re sane automatism: 13

(II) INSANE AND NON-INSANE AUTOMATISM!...... 172 (a) Recurrence test!...... 172 Bratty v Attorney-General for Northern Ireland [1963] AC 386 (b) Internal/External Test!...... 173 Falconer (1990) 171 CLR 30 The standard of the ordinary person’s mental strength Causes of automatism Exempting qualifications – a malfunction of the mind NOT a disease of the mind Results of proving exempting qualifications – total acquittal Application (c) Unsound/sound mind test...... ! 176 Woodbridge [2010] NSWCCA 185 (III) CAUSES OF AUTOMATISM!...... 177 (a) Dissociation!...... 177 (b) Hypoglycaemia/hyperglycaemia...... ! 178 (c) Epilepsy!...... 178 (d) Sleepwalking!...... 178 (e) Concussion!...... 179 (IV) VOLUNTARINESS & PSYCHIATRIC EVIDENCE...... ! 179 SUBSTANTIAL IMPAIRMENT (I) GENERAL/CONTEXT!...... 180 (II) ELEMENTS...... ! 181 Crimes Act 1900 (NSW) s 23A - Substantial impairment by abnormality of mind Elements: (a) ‘Abnormality of the mind’...... ! 181 Byrne [1960] 2 QB 396 (b) Causes of abnormality...... ! 182 (c) Substantial impairment...... ! 183 (d) Sentencing Issues!...... 183 Veen (1979) 53 ALJR 305 (III) INFANTICIDE!...... 184 Crimes Act 1900 (NSW) s 22A - Infanticide INTOXICATION (I) SELF-INDUCED INTOXICATION!...... 186 (a) Common Law Background...... ! 186 The Basic/Specific Intent Dichotomy!...... 186 Lipman [1970] 1 QB 152 DPP v Majewski [1977] AC 443 Australian Position O’Connor (1980) 146 CLR 64 Crimes Act 1900 (NSW) s 428H - Abolition of common law relating to self-induced intoxication 14

(b) Burden of Proof!...... 188 (c) Legislation!...... 190 Crimes Act 1900 (NSW) s 428A – Definitions Crimes Act 1900 (NSW) s 428B - Offences of specific intent to which Part applies Crimes Act 1900 (NSW) s 428C - Intoxication in relation to offences of specific intent Crimes Act 1900 (NSW) s 428D - Intoxication in relation to other offences Intoxication and Murder Crimes Act 1900 (NSW) s 428E - Intoxication in relation to murder and manslaughter Relationship between intoxication and other defences Crimes Act 1900 (NSW) s 428F - Intoxication in relation to the reasonable person test (II) INTOXICATION WHICH IS NOT SELF-INDUCED!...... 192 (a) General!...... 192 Crimes Act 1900 (NSW) s 428G - Intoxication and the actus reus of an offence 15

OFFENCES Assault (non-sexual)

(I) COMMON ASSAULT • Context is paramount: a very minor contact, causing no physical injury, may constitute an assault if the actor possesses a certain state of mind (such as the intention to frighten). • All common assaults are charged under s61 of the Crimes Act, but ordinarily will be dealt with summarily by the Local Courts. Sections 32-61 deal with most assault offences. • The common law originally contained separate offences of ‘assault’ and ‘, but fit under the general term ‘assault’ in the modern criminal law. • In Darby v. DPP (NSW) (2004) 61 NSWLR 558, Giles JA noted: o 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. There can be an assault without a battery, and there can be a battery without an assault… the distinction between assault and battery has been said to be ‘in terms more easily understood by philologists than by ordinary citizens’ and in common parlance the infliction of unlawful force is spoken as an assault This usage has crept into the law, as a convenient abbreviation and in legislation… the distinction remains, and must be recognised ( at [71]-[72]). • Table 2 offence - prosecution can elect to have it trialed summarily or on indictment. • Two Forms both covered under s 61: 1. An assault is any act committed intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence (assault by threat of force). 2. Where a person causes force to be applied to the body or clothing of another (assault by force)

Crimes Act 1900 (NSW) s 61 - Common Assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

(1) ASSAULT BY FORCE (a) Definition • Actus reus (physical element): The application of force to the body of another person without consent or lawful justification. • Mens rea (Fault element): Intending to use unlawful force on another person or being reckless as to the use of such force (MacPherson v Brown).

(b) Actus Reus of ‘Assault by Force’ • An omission to act does not constitute an assault [Fagan] • A person, intentionally or recklessly, causes force to be applied to the body or clothing of another (R v Day (1845) 1 Cox 207. • The force used need not be violent/hostile, but can be as slight as a mere touch (Collins v Wilcock [1984] 1 WLR 1172. • If an injury results from the application of force and it is more than minor, then the accused may be charged with an aggravated assault. • Usually, an assault is committed by delivering a blow with a limb or using a weapon of some kind. 16

• Directness: At common law, application of force must be direct in that it must be aimed at the victim or an object on which the victim is supported (R v Salisbury [1976] VR 452). o May be some capacity for assault to result when the force is indirect (Martin 1881) 8 QBD 54

Spitting as an assault ‣ DPP v JWH (unreported, NSWSC, 17 October 1997) [FACTS: JMW was charged with the assault of two police officers at Mt Druitt police station. As he entered the charging dock he turned and spat saliva in the direction of Constable Harris (some of it falling on the police officer’s face). At the same time, some of the spittle fell on the back of the shirt worn by Constable Grainger. The magistrate dismissed both charges. he held that, in relation to the spitting at Constable Harris, ‘the act of spitting did not constitute an application of force’ and that, in relation to the charge concerning Grainger, ‘there’s no prima facie case that JWH assaulted him because Mr. Grainger was unaware of the incident and I don’t consider that the necessary ingredients are made out.’] The act of spitting at or on someone will constitute battery, and in given circumstances, may constitute assault. Held: • Hulme J quashed the magistrate’s findings. • The common law recognised as distinct offences, assault and battery. In this context an assault is constituted by an act which intentionally or recklessly causes another to apprehend immediate and unlawful violence. • The offence of battery , involves the actual infliction of unlawful force on another, ‘be it ever so small.’ • Another matter which should be noted in the current context is that the clothes a person is wearing are regarded as so intimately connected with the person that to touch the clothes is regarded as touching the person. o The final references to authority I would make on this aspect are to R v. Smith (1866) 4 F & F 1066, 176 ER 910 and R v. Cotesworth (1704) 6 Mod 172, 87 ER 928, wherein it was held that spitting on another was battery. In the former of these cases it was also said that spitting at someone was an assault (in the narrow sense of that term) but it would seem to me that in light of the elements of assault referred to above, thus must depend on the circumstances and not all actions of spitting at someone will amount to assaults (in the narrow sense of that term) … o The magistrates reasons for dismissing the charge of assault involving Constable Harris, viz. that the act of spitting did not constitute an application of force, cannot stand consistently with what has been the law for over 200 years.

(c) Mens Rea of ‘Assault by Force’ Intentionally or recklessly effecting unlawful contact (battery): Fagan (1969); Venna (1976) (i) Intention • Assault has been referred to as a crime of basic intent (R v O’Connor (1980), in that it is a crime involving a specified form of conduct and intention which is therefore indicative of the accused having meant to perform the conduct. o Common assault as a conduct crime - intention as to the use of force rather than bringing about a result. o A narrow form of intention is appropriate “to bring about an at of a particular kind” (Per Brennan J in He Kaw Teh) • Subjective test: accused means to use force on the victim. • It is unnecessary that the intentional application of force be accompanied by hostility. In Boughly [1986]: o D was a doctor who, for the sexual arousal of his partner, applied manual pressure to her carotid arteries. He had not intended to cause her injury, but to increase her sexual excitement for this purpose of sexual activities they were engaged in at the time. D was charged with 17

murder when this practise resulted in her death. He argued that he had intended no injury. It was held that hostile intent is not an ingredient to the offence of battery at common law where force is intentionally applied to V. o The court noted that hostile intent could convert what would otherwise not be a battery into battery: ‣ 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 ingredient of an unlawful battery. Where the existence of hostility or hostile intent may be of decisive importance is in a case [in] which…that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law…Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom the force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law…nor, of itself, constitutes a justification or excuse for it.

(ii) Recklessness

Crimes Act 1900 (NSW) s 4A - Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.

• Subjective test: An assault will be made out if the accused foresaw unlawful force (Fagan v Commissioner of Metropolitan Police). • Degree of foresight required: The weight of authorities is clear that the standard for reckless assault is that of ‘possibility’ rather than ‘probability’ [see MacPherson v. Brown (1975); Coleman (1990)] • In Coleman (1990) 19 NSWLR 467: o The court considered recklessness as the mental state required for the charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse. Where the facts alleged that the accused acted maliciously through foreseeing certain criminal consequences, then the degree of foresight must be ‘probable’ where the crime charged is murder and ‘possible’ for other statutory offences. • In Venna (1975) o D lashed out at police officers seeking to arrest him, resulting in D fracturing one police officer’s hand. D was charged with assault occasioning actual bodily harm (ABH). D stated that he had not intended to hit V, but was kicking in an to get off the ground. o It was held that if he recognised the possibility of unlawful contact he had mens rea for assault. D was found guilty.

(2) ASSAULT BY THREAT OF FORCE (a) Definition • Actus Reus (physical element): An assault by the threat of force is any act committed intentionally or recklessly which puts another person in fear of immediate and unlawful personal violence (Darby v DPP (2004) 61 NSWLR 558.) • Mens Rea (mental element): Intentionally or recklessly putting another person in fear of immediate and unlawful violence (Macpherson v Brown (1975))

(b) Actus Reus for ‘Assault by Threat of Force’ • The defendant must act (conduct) so as to create an apprehension by the victim of imminent unlawful contact. 18

(i) Positive Act • An omission to act is rarely sufficient to constitute an assault [Fagan] • The courts have a broad definition of what constitutes a positive act, including silent phone calls [R v Ireland; R v Burstow; )]. o A series of silent telephone calls that caused fear of immediate and unlawful bodily harm amounted to assault. • Threats over the telephone may be sufficient (if accused has some form of power over the victim and is in a position to carry out the threats (Knight, qualifies Barton v Armstrong). • The use of threatening words has also been held to constitute a positive act in all common law jurisdiction (NB must be a threat of immediate violence, threats of future violence will not suffice) [Tout; Knight]. • Conditional threat may be sufficient if unlawful: Rozsa v Samuels

Positive Act ‣ Fagan v Commissioner of Metropolitan Police (1962) 1 QB 439 [FACTS: The appellant was reversing a motor car, when Police Constable Morris directed him to drive the car forwards to the kerbside and standing in front of the car parked out a suitable place in which to park. The appellant drove forward towards him and stopped it with the offside wheel on Morris’ left foot. ‘Get off, you are on my foot’ said the officer. ‘Fuck you, you can wait’ said the appellant. The engine of the car stopped running. Morris repeated several times for the appellant to get off his foot. Eventually the appellant reversed the car off the officer’s foot. • To constitute the offence of an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault. • An assault is an act which intentionally, or possibly recklessly, causes another person to apprehend immediate and unlawful personal violence, and...the actual intended use of unlawful force to another person without his/her consent. Held: • The court held that whether the driving onto the foot was accidental or intentional, the accused still knowingly, unnecessarily, and provocatively allowed his car to remain there after the battery had been identified. • The crucial question was whether the actus reus could be considered spent after the car came to rest on the foot, or whether it was a continuing act operating until the wheel was removed. • Although ‘assault’ is an independent crime and is to bet related as such...assault is generally synonymous with the term ‘battery’ and isa term used to mean the actual intended use of unlawful force to another person without his consent. • Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. • The distinction between a continuing and completed actus reus is whether the consequences continued to flow. o If the act, as distinct from the results thereof, is a continuing act there is a continuing threat to inflict unlawful force. o If the assault involves a battery and, that battery continues there is a continuing act of assault. o For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The ‘actus reus’ is the action causing the effect on the victim’s mind. The ‘mens rea’ is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed upon an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault. • The question of assault was considered by James J: o To constitute the offence of an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault … for our part we think the crucial question is whether in this case 19

the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until the wheel was removed. o There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. The fallacy of the appellant’s argument is that it seeks to equate the facts of the case with such a case where motorist has accidently run over a person, and, the action having been completed, fails to assist the victim with the intent that the victim should suffer. The appeal is dismissed.

(ii) State of mind of the victim • The victim must actually have been put in fear of imminent unlawful contact [Barton v. Armstrong; MacPherson v. Brown] • As a consequence, the victim must be aware of/apprehended the threat of imminent unlawful contact. If the victim is unconscious or asleep, then a (psychic) assault cannot be committed. o In Pemble (1971) 124 CLR 107 the victim was unaware that the defendant was pointing a rifle at her back. Menzies J therefore held that the D had not committed an assault on the victim. • There are questions as to whether it is necessary for the offence that the victim is actually fearful: o In Ryan v. Khul [1979] VR 315 where a knife was thrust though the wall of a toilet cubicle to threaten the next-door occupant, the intended victim was not afraid because of the defendant’s actions. This was because the victim believed that the accused could not harm him so long as he had hold of the knife handle in the adjoining cubicle. Whether the victim is uncommonly strong willed and as such is not fearful should have nothing to do with establishing the conduct for assault. o Brady v Schatzel: ““It is not material that the person assaulted should be put in fear...If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person” ‣ All that is required is the anticipation of the application of unlawful personal violence. o Contradictory authority: It is suggested that the V’s fear must be reasonable, in the sense that a reasonable person would have also been in fear, that is, D’s liability is limited by an objective test [Barton v. Armstrong; Brady v Schnatzel (1911)] ‣ However, the question is more likely to revolve around whether D had the necessary mens rea to create an apprehension of imminent unlawful contact than whether V’s fear was reasonable. This is because authorities are clear that, where D knows that V is of unusual timidity, the unreasonableness of the fear may not prevent conviction [MacPherson v Brown]. ‣ Where V’s fear is unreasonable, and D has no knowledge of this timidity, then clearly D will not have mens rea. • An apprehension of personal violence may exist even where the accused is not in a position to carry out the threat. o E.g. if a victim reasonably believes that a firearm may be loaded and that he or she is within range, the accused’s actions may amount to an assault whether the gun is actual loaded or not (R v Everingham). o In R v Everingham (1949) 66 WN (NSW) 122 the accused pointed a toy gun at a taxi driver who thought it was real. The NSWCA held that these facts established ‘as clear a case of assault’ as could be imagined.

(iii) Imminence/Immediacy • General Rule: At common law, V must apprehend ‘imminent’ or ‘immediate’ unlawful violence [Zanker v. Vartzokas]. Thus, generally, threats of future violence should not amount to an assault [Knight] 20

• Instances where the apprehension of bodily harm has been considered to be immediate include: o Where the accused was in another room (R v Lewis [1970] Crim Lr 647); o Where the accused was on the other side of a locked door, apparently about to break it down (Beech (1912) 7 Cr App R 197); o Where the accused opened a drawer and showed the victim a gun delcaring that he would hold her hostage (Logdon v DPP [1976] Crm Lr 121); and o Where the accused peered in through a bedroom window at the victim who was wearing her night clothes (Smith v Chief Superintendent Woking Police Station (1983) 76 Cr App R 234)

Threats made over the telephone • Threats made over the phone have raised questions of imminence, and the courts have continued to grapple with this issue. • In Barton v Armstrong, D made threats over the phone. It was held that D could be guilty of assault provided that the threats were sufficient to ground a fear of imminent violence in V’s mind. While, Barton v Armstrong was distinguished on the facts in Knight. o Telephone calls will not normally be sufficiently immediate for criminal liability, unless the accused has some form of power over the victim and is in a position to carry out the threats (Knight). ‣ Knight limits Barton v Armstrong to this kind of specific factual situation. • Whether assault can be constituted by silent telephone calls in appropriate circumstances was considered in England by the House of Lords [R v Ireland]

‣ Barton v Armstrong [1969] 2 NSWR 452; NSWSC [FACTS; The plaintiff and defendant were members of the Sydney business community who had been engaged in an acrimonious equity suit in the Supreme Court of NSW in relation to the acquisition of shared in a public company. One of the allegations made by the plaintiff in the equity suit was that he had executed a certain deed under the duress of the defendant. The plaintiff, in this court, alleges that on very many occasions the defendant threatened to do or to have done to him physical violence, to the extent of having killed him and that the defendant had hired agents to stalk the plaintiff. The defendant telephoned the plaintiff in the early hours of the morning threatening him in an atmosphere of drama and suspense.] Threats over a telephone could put a reasonable person in fear of later physical violence and that can constitute an assault although the victim does not know exactly or even approximately when that physical violence may be applied. • NB: Defendant in a position of authority over the plaintiff - in a position to carry out the threats (power differential which distinguished ‘Knight’) Held: • D could be guilty of assault provided that the threats were sufficient to ground a fear of imminent violence in V’s mind: o Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an inference with personal freedom and integrity, and the right of a person to be free from fear of insult. If the threat produces the fear or apprehension of physical violence, then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached. (per Taylor J) • The essence of assault is the expectation raised in the mind of the victim of physical contact from the threat of the defendant. ‘An assault is the threat by one man to inflict unlawful force upon another. • The actus reus of assault thus consists in the expectation of physical contact which the offender creates in the mind of the person whom he threatens’ • Mere words themselves were not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence. 21

• Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective. • If the threat produces the fear or apprehension of physical violence then the law is breached, although the victim does not know when the physical violence may be effected. • There is no doubt that the purpose of the threat would be to instil such fear in the mind of the plaintiff that he would do the will of the person making the threat. Defendant’s application dismissed

Threats of future violence (distinguished from Barton v Armstrong) • Telephone calls will not normally be sufficiently immediate for criminal liability, unless the accused has some form of power over the victim and is in a position to carry out the threats (Knight). ‣ Knight limits Barton v Armstrong to this kind of specific factual situation. ‣ Knight (1988) 35 A Crim R 314 [FACTS: There was some incident on a bus which required a police officer to attend and in due course, as a result of his enquiries, a summons was issued against the appellant which would seem, although not expressly stated, for assault on the bus driver. The matter came before Mr Henderson SM and he found the appellant guilty. The appellant appealed to the DC and the appeal came before his Honour Judge Muir who dismissed the appeal. From about August 1983, Mr Henderson SM began to receive phone calls at his home. Some were taken by himself, some by his daughter, some by his wife. The calls were both threatening to the lives of himself and other members of his family and also extremely abusive. The appellant was convicted of assault under s 61 of the Crimes Act 1900 and also convicted of making false statements giving rise to apprehension for a person’s safety (Crimes Act s 248A) following threatening and abusive telephone calls to a police office, a magistrate and a judge. Apart from the telephone calls, which were traced to the appellant at a considerable distance from the targets, there was no evidence in relation to the assault charges. A question on appeal was whether the evidence of the threats was sufficient to constitute assault] The issue of immediacy of the violence depend on the circumstances in which the threat was delivered. Telephone threats could constitute this, however, generally, threats of future violence should not amount to an assault. Held: • Since the calls were made from an appreciable distance away and the recipients of the calls were not in any danger of immediate violence, there was no conduct that could constitute an assault: “They were mere threats which may have been executed at anytime if at all” • The nature of an assault was considered in Fagan v. Metropolitan Commissioner of Police [1969] 1 QB 439: o An assault is an act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence • It is to be noted that the expression is, ‘apprehended immediate violence’, not, ‘immediately apprehends violence’. • The court also cited and approved the passage from Collins v. Wilcock [1984] 79 Cr App R o The law draws a distinction in terms more easily understood by philologists than by ordinary citizens between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his person. A battery is the actual infliction of unlawful force on another person. • The evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all. • Lee J distinguished the present case from Barton v Armstrong [1969] 2 NSWR 451: o It seems to me that a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault, and accordingly I am not to be taken as saying that merely because a threat is made by phone it could not thereby constitute an assault. Some of the remarks of his 22

Honour in that judgement would suggest perhaps that the element in assault that the violence be immediate, that is that there be a fear of immediate violence was not always necessary and that the word ‘immediate’ could be stretched to perhaps cover events in the future. o I do not regard the decision in Barton v. Armstrong as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import. o It follows from what I have said that none of the assault charges upon which the appellant was convicted provided any evidence for such conviction and accordingly the convictions must be set aside.

Silent Phonecall ‣ R v Ireland; R v Burstow [1997] 4 All ER 225; House of Lords [FACTS: During a period of three months in 1994 covered by the indictment he harassed three women by making repeated telephone calls to them during which he remained silent. Sometimes, he resorted to heavy breathing. The calls were mostly made at night. The case against him, which was accepted by the judge and the Court of Appeal, was that he caused the victim to suffer psychiatric illness. The judge sentences him to a total of three years imprisonment. It is necessary to consider whether psychiatric illness may amount to bodily harm. It is necessary to consider whether the making of silent telephone calls causing psychiatric injury is capable of constituting an assault.] Assault may be committed by a silent telephone call if the silence causes the listener to apprehend the imminent application of unlawful force. Held: • Psychiatric illness suffered by the victims amounted to ‘bodily harm’ under s 47 of the 1867 Act. • There is no reason why something said should be incapable of causing an apprehension of immediate personal violence. • Lord Steyn concluded that psychiatric illness can amount to bodily harm and then examined whether the making of silent telephone calls causing psychiatric injury is capable of constituting an assault: o The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, ‘Come with me or I will stab you.’ I would, therefore, reject the proposition that an assault can never be committed by words. • Lord Steyn noted that silent phone calls could not constitute a battery and continued: o That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be ‘yes, depending on the facts.’ It involves the questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law, the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular on the impact of the caller’s potentially menacing call or calls on the victim… I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot be guilty of an [assault]. • It is not true to say that mere words or gestures can never constitute an assault. It all depends on the circumstances. If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context. • Silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence. • Appeal dismissed. 23

‘Immediate and continuing fear’ • A threat of harm, if it is sufficiently imminent, may satisfy the necessary mental state for common assault. • Secretary (1996) 86 A Crim R 119: “an assault is a continuous one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed” • The courts have used the concept of ‘immediate and continuing fear’ to interpret the requirement of ‘imminence’ in a way which is sympathetic to the plight of the V. • This principle was highlighted in the case of Zanker v Vartzokas (1988): (NB: false imprisonment does not ordinarily amount to assault) ‣ Zanker v Vartzokas (1988) 34 A Crim R 11 [FACTS: The young woman accepted a lift form the defendant. The D accelerated the van and soon after it was under way, he offered her money for sexual favours. She rejected this offer. He persisted. She demanded that he stop to allow her to get out but he drove on, accelerating as he went, albeit rather slowly as the van was loaded. She repeated her demand, threatening to jump out. He accelerated faster and the applicant then said, ‘I am going to take you to my mate’s house. He will really fix you up.’ By this time, the van was traveling at 60 kph. The threat in the circumstances put her in such fear that she opened the door and leapt out on to the roadside. She suffered bodily injuries. The issue was whether assault could be proved where the conduct of the defendant induced a present fear in the intended victim’s mind that later on, in the indefinite future; she would be or could be subjected to the threatened violence.] Fear may be a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance. Therefore, the issue of immediacy is not simply a measure of the duration between the utterance and the realisation of the threat. Held: • The accused was put in a fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the mercy of the accused. That was sufficient for the charge of assault to be made out. • It is convenient to start with the most recent decision of the Full Court in the State. In MacPherson v Brown (1975) 12 SASR 184 all members of the court pointed out that: o unlawful imprisonment and assault were separate offences; that an unlawful imprisonment did not necessarily imply an assault; and that a person guilty of an unlawful imprisonment could also be guilty of assault only if all the elements of the crime of assault accompanied the unlawful imprisonment. • Implicit in the reasoning of that case, is that the fear had to be 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. o The young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. Unlike the ‘threat’ and fear in MacPherson’s case, the defendant threat of violence was explicit, namely, that when they arrived at ‘his mate’s house’, ‘he will really fix you up’. The threat was, it is true, to be carried out in the future, but there was no indication by the defendant whether the ‘mate’s house’ was around the next corner or several or more streets away in the suburban area. A present fear of relatively immediate imminent violence was 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… • One analogy is that she was in the captive position of a mouse to which a playful cat poses a continuing threat of injury or death at a time to be decided by the cat. There was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm. • The fallacy in the defendant's argument is the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house. 24

• The young woman here reasonably believed in the defendant’s intention and power to inflict violence in due course with the help of his ‘mate’. Instead of striking out … she jumped out. • Once the assault was proved, the bodily harm resulting from the escape was ‘occasioned’ un fact whether or not the defendant foresaw that she would jump out and injure herself. Appeal allowed.

(iv) Conditional Threats • Conditional threats are threats where D imposes some condition upon V whereby, if V does not meet that condition, D will inflict some violence. • Conditional threats raise the issue of imminence because, if V met D’s condition, then there would be no need to apprehend imminent unlawful contact. The requirement of imminent infliction of physical harm is the ultimate factor in determining liability. • The courts have approached conditional threats in two ways:

Looking at the words of the threat: • The courts will look first at the words of D to determine whether or not there are nay grounds for V to fear imminent unlawful contact. • In Tuberville v. Savage (1669), where D laid his hand on his sword and said ‘if it were not assize time I would not take such language’, it was held that this did not amount to an assault, for clearly these words, though threatening, were such as to suggest that D would not attack V.

Whether D had the right to impose the condition: • If word of threat were to suggest imminent violence, the courts will consider whether D had the right to impose that condition • Police v. Greaves [1964] NZLR 295 o D told V, a police officer, that he would stab V if he came any close. Although there was no occasion for V to suppose a threat of imminent attack, the threat constituted an assault. This is because D subjected V to intimidation by threatening to apply force – a condition D had no right to impose. • Rozsa v Samuels [1969] SASR 205 o [FACTS: D was a taxi driver who drove his taxi to the front of the queue. V, another taxi driver, remonstrated with D, who said “I am here and I’m staying here”. V said he would punch D in the head, and D responded by pulling out a knife saying “I’ll cut you to pieces if you try it”. D tried to get out of his taxi but was stopped by V slamming the taxi door. D was charged with assault.] o The court held it was necessary to look at the terms of the condition and whether D had any right to impose that threat. One ground for this is self defence. In this case, D threatened with excessive force, which would have precluded reliance upon self-defence. Thus D was found to be guilty of assault. o Where a threat is in excess of what self-defence requires, assault may arise. The accused in Samuels was convicted of an assault as his words and actions constituted more than simply a threat of force unless someone desists in an unlawful course of action. There were other lawful ways of seeking to remove the threatened force.

(c) Mens Rea of ‘Assault by Threat of Force Intentionally or recklessly putting another person in fear of immediate and unlawful violence (Macpherson v Brown 1975) (i) Intention • The accused must have meant to create an apprehension of immediate and unlawful personal violence. 25

• Assault has been referred to as a crime of basic intent (R v O’Connor (1980), in that it is a crime involving a specified form of conduct and intention which is therefore indicative of the accused having meant to perform the conduct.

(ii) Recklessness • An assault will be made out if the accused foresaw the act causing an apprehension of immediate and unlawful personal violence • The weight of authorities is clear that the standard for reckless assault is that of ‘possibility’ rather than ‘probability’ [see MacPherson v. Brown (1975); Coleman (1990)] • In Pemble (1971) 124 CLR 107: o the accused argued that he had intended only to put the accused in fear by pointing the loaded rifle in her direction, and in no way intended to inflict violence on her. Her subsequent shooting and death were accidental. However, if it could be said that brandishing the loaded rifle was an unlawful and dangerous act, then that could become conduct sufficient to establish manslaughter. o The circumstances at least constituted an attempt to assault the victim and were obviously dangerous to the deceased, even if not constituting an assault because the victim had not been aware of the rifle.

Must be subjective • The case of MacPherson v Brown (1975) stresses that D must subjectively recognise the riskiness of D’s behaviour and the issue was whether the proof of recklessness would suffice, with a narrow reading of the meaning of recklessness. o It will be enough that the accused foresaw the possibility that force might be inflicted. ‣ MacPherson v Brown (1975) 12 SASR 184 [FACTS: A student was convicted of having assaulted her lecturer at Flinders University. A number of students, including the defendant, had taken over the administration building in protest. The lecturer in question, who was involved in the re-occupation of the building by University officials, was surrounded by a number of students who for a time prevented him from passing through the group and caused him to fear for his personal safety. No actual physical contact was made and he was allowed to pass after about 15 minutes. A special magistrate held that the defendant had been reckless and ought to have known that his conduct could have given reasonable grounds for apprehending an infliction of physical force.] • Where the conduct constituting an alleged assault is a threat of violence without actual physical contact, it is not sufficient to constitute the offence that the defendant ought to have known that his or her conduct might give cause for belief of imminent harm. Mere reckless inadvertence to the consequences of his or her conduct on the defendant's part is not sufficient. There must be actual knowledge that his conduct may give rise to an apprehension of physical violence. • The accused must subjectively recognise the riskiness of his own behaviour Held: • The term ‘recklessness’ is sometimes confined to advertent conduct and sometimes used to include inadvertent conduct. The resulting confusion is considerable and deplorable. It is much to be desired that the word ‘reckless’ should be confined to action where the relevant consequences are adverted to even if not desired. • The word ‘reckless’ should be confined to action where the relevant consequences are adverted to, as Bray CJ stated: o 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 or foreseen in the circumstances. 26

(II) COMPOUND ASSAULTS

The term aggravated (‘compound’) assault is used to describe a diverse range of assaults which are regarded as more serious than common assault because of the presence of additional aggravating elements.

(1) ASSAULTS CAUSING PARTICULAR INJURIES Require proof of further injuries as part of the physical element but not of any specific intention to commit these injuries

Crimes Act 1900 (NSW) s 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. [Elements: 1. That the accused assaulted the victim; and 2. as a consequence of that assault, the victim suffered actual bodily harm.] (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. [Elements: 1. That the accused was in company with another person or persons; and 2. that the accused assaulted the victim; and 3. as a consequence of that assault, the victim suffered actual bodily harm]

(a) Actus Reus for ‘Assaults causing particular injuries’ (s 59) • At common law, it has been held that the words ‘actual bodily harm’ should be given their ordinary and natural meaning’ (R v Metharam [1961] 3 All ER 200). • ‘Actual bodily harm’: ‘bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt of injury need not be permanent but must, no doubt, be more than merely transient and trifling’ (Donovan [1934] 2 KB 498) • ‘Actual bodily harm’ capable of including psychiatric injury: Chan-Fook [1994] 2 All ER 552: o The phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress or panic, nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition… in any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution. It should not be left to be inferred by the jury from the general facts of the case. (at 559 per Hobhouse LJ) • But, ‘nervous shock merely constituted emotions and reactions and did not establish psychiatric condition and, accordingly, did not constitute actual bodily harm’ [See Lardner (unreported, NSWCCA, 10 Sept. 1998), applied Chan-Fook] • ABH will not include emotions such as fear or panic or other states of mind which are not themselves evidence of some clinical condition.

(b) Mens rea for ‘Assaults causing particular injuries’ [NB: the same as common assault] • Intentional or reckless assault of the victim resulting in actual bodily harm (R v Williams) o The intention or recklessness relates to the use (or threatened use) of force, rather than the actual bodily harm, rendering this a conduct rather than a result crime (R v Venna). ‣ Not necessary to prove specific intent to cause actual bodily harm (Coulter v R 1988). 27

• In Percali (1986) 42 SASR 46: the South Australian SC held in respect of assault occasioning actual bodily harm that it is established law that: o The mental element of this crime consists in the intention to apply unlawful force, that is to say, commit an assault, but that it is not necessary for the prosecution to establish that the offender intend to occasion actual bodily harm.

(2) ASSAULTS WITH FURTHER SPECIFIC INTENT Requires proof of specific intention to commit further injury/offence • A number of offences are aggravated by the presence of further specific intent. o s 27 - Acts done to the person with intent to murder o s 29 - Certain other to murder o s 33 - Wounding or grievous bodily harm with intent o s 33A - Discharging firearm etc. with intent o s 33B - Use or possession of weapon to resist arrest o ss 37-38 and 58 contain offences of assault with intent to commit an indictable offence. • Generally, the prosecution must prove the further specific intent.

(3) ASSAULT ON PARTICULAR CLASSES OF PEOPLE Requires proof of assault and that victim of a certain category • All jurisdictions criminalise assaulting a police officer in the execution of his or her duty. • In all jurisdictions, except Victoria, the defendant need not be aware that the person assaulted was a police officer. • The High Court in Reynhoudt decided that the offence was one of strict liability, not absolute liability.

Crimes Act 1900 (NSW) s 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 [Elements: 1. The accused assaulted the victim; and 2. Did so with intent to commit a serious indictable offence.] 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 [Elements: 1. The accused assaulted, resisted or wilfully obstructed; and 2. The victim was acting in aid of a constable, other peace offer, customs house officer, sheriff’s officer, prison officer or bailiff; and 3. The assault occurred while the constable, other peace officer, customs officer, sheriff’s officer, prison officer or bailiff was acting in the execution of his/her duty] assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, [Elements: 1. The accused assaulted the victim; and 2. did so with the intention of resisting or preventing the lawful apprehension or detention of any person] shall be liable to imprisonment for 5 years.

Actus Reus • Assault • On Police officer 28

• Intimidate: need actual intimidation and means ‘to render timid, to inspire with fear, to overawe, to cow or to force or deter some action by threats or violence or by inducing fear’: Meller v Law [2000] NSWSC • Sufficient to prove the words or acts of the accused actually caused the officer to experience fear or apprehension for his or her personal safety. Mens Rea • Same as assault (see above) • None for person being police officer: R v Reynhoudt (1962) • Defence of honest and reasonable mistake of fact. • [Interpretation of the offence to presume mens rea - imply a requirement for knowledge that a person is a police officer or that the person is reckless as to the identity of the person]

‣ Reynhoudt (1962) 107 CLR 381 [FACTS: The accused was charged and convicted of robbery under arms, assault with intent to resist lawful apprehension and assaulting a police officer in the execution of his duty (under Crimes Act 1958 (Vic) s 40, which is identical to NSW Crimes Act s 58). On the last charge, the trial judge directed the jury that the Crown need not prove that the accused actually knew that the person assaulted was a police officer acting in the execution of his duty at the time of the assault. The Victorian Court of Criminal Appeal allowed an appeal against the verdict on the third count because the direction was incorrect, quashed the conviction and ordered a new trial. The Attorney-General of Victoria then applied for special leave to appeal to the High Court.] There is no requirement that the accused be aware that the victim was a police officer, nor that the victim was acting in the course of duty. Establishing the status of the victim as a police officer is a matter of the actus reus. If the victim is not acting within the course of his duty when assaulted, then the defendant does not commit the aggravated offence. Held: MENZIES J • Held that the section states all the elements of the offence and it is not necessary to infer that any mental element beyond that which the words used (i.e. assault, resist, wilfully obstruct) themselves import must be established. o Here I think… that the indication of the language used is that ‘knowingly’ is not to be implied and this is borne out by the aim of the legislation, which it may be inferred was to give policemen, whether in uniform or plain clothes, protection and freedom form interference in the discharge of their dangerous duties by imposing an additional penalty upon persons assaulting them who cannot excuse their conduct by proving honest mistake upon reasonable grounds. • On a charge of assaulting a police officer in the execution of his duty it is sufficient to prove intent in relation to the assault only: it is not necessary to show intent in relation to the other elements of the offence, namely that the person assaulted was a policeman and that he was acting in the execution of his duty. • Decision in the Court of Criminal Appeal reversed and convictions re-instated. [Taylor and Owen JJ agreed with Menzies J. Kitto joined Dixon CJ in dissent. The decision of the Victorian Court of Criminal Appeal was reversed and the conviction reinstated.] 29

Assaults on officers using offensive weapons or dangerous substances • In Manton [2002] NSWCCA 316 it was held that the offence of intimidation of a police officer under s 60 requires proof of no more than that the acts or words of the accused caused the officer to experience fear or apprehension, and that it was not necessary to prove that such fear overbore them to such an extent that they were influenced to or deterred from some action in the course of their duty.

Crimes Act 1900 (NSW) s 60 - Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years. [Elements: 1. The victim was a police officer; and 2. The victim was acting in the execution of his/her duty; and 3. The accused assaulted, threw a missile at, stalked, harassed or intimidated the victim; and] (1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years. [Elements: 1. The victim was a police officer; and 2. The victim was acting in the execution of his/her duty; and 3. During a public disorder 4. The accused assaulted, threw a missile at, stalked, harassed or intimidated the victim] (2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. [Elements: 1. The victim was a police officer; and 2. The victim was acting in the execution of his/her duty; and the accused assaulted the victim; and 3. By this assault the accused occasioned actual bodily harm to the victim.] (2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years. [Elements: 1. The victim was a police officer; and 2. The victim was acting in the execution of his/her duty; and 3. during a public disorder; 4. the accused assaulted the victim; and 5. by this assault the accused occasioned actual bodily harm. (3) A person who by any means: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 12 years. [Elements: 1. The accused either (i) wounded or (ii) inflicted grievous bodily harm on the victim and 2. the victim was a police officer; and 3. the victim was acting in the execution of his/her duty. (3A) A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and (b) is reckless as to causing actual bodily harm to that officer or any other person, is liable to imprisonment for 14 years. 30

[Elements: 1. The accused during a public order 2. Either (iii) wounded or (iv) inflicted grievous bodily harm upon the victim and 2. the victim was a police officer; and 3. the victim was acting in the execution of his/her duty. (4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out: (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or (b) because the officer is a police officer.

(4) OTHER ASSAULTS (a) Assaults using offensive weapons or dangerous substances • Assaults involving the use of an ‘offensive weapon or instrument’ or ‘arms’ or other dangerous instruments are also classed as aggravated assaults, whether or not an actual injury eventuates. • The case law [R v. Sutton (1877) 13 Cox CC 648] defines an ‘offence weapon’ as: o ‘Any instrument, however innocent in its ordinary use, may be an offensive weapon if brought out for offensive use, and it is a question for the jury as to whether under the particular circumstance such a weapon or instrument is to be used for the purpose of an offence’ Crimes Act 1900 (NSW) s 4 - Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires: "Offensive weapon or instrument" means: (a) (a) a dangerous weapon, or (b) (b) any thing that is made or adapted for offensive purposes, or (c) (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

Crimes Act 1900 (NSW) s 33B - Use or possession of weapon to resist arrest etc. (1) Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 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 15 years.