BASICS
Burden of Proof (onus) Standard of Proof Elements of Offence (e.g. Legal burden on the Beyond reasonable doubt à Jury Murder) prosecution/crown à has to be convinced of the Responsibility to prove to the outcome without doubt jury that the defendant is guilty Insanity and s 23A Legal burden is on the Balance of probability à “more defendant not the prosecution probable than not” à Responsibility to prove to the jury level of insanity at time of incident - Other defenses - Evidential burden on - Provision of evidence the defendant à Reasonable - Involuntariness - Legal burden on the possibility prosecution - Beyond reasonable doubt
Prosecution must prove all elements of the offence beyond a reasonable doubt à Woolmington v DPP [1935]
Presumption that the act was voluntary (the accused can rebut this by satisfying an evidentiary burden) à Falconer (1990)
ASSAULT: COMMON ASSAULT
Whoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years
S 61 – BATTERY
ACTUS REUS 1. Application of unlawful contact 2. Without consent of victim Must be an act NOT an omission à Fagan v Commissioner of Metropolitan Police [1969]
Application of force is unlawful unless V has consented à R v Clarence (1888)
People can consent to actual bodily harm à Brown [1994]
MENS REA 1. Intentionally/Recklessly apply unlawful contact S 61 - PSYCHIC ASSAULT ACTUS REUS 1. Threatened application of unlawful contact 2. V reasonably apprehends/fears 3. Imminent unlawful contact Threat must be sufficiently imminent (issue with phone calls and their lack of imminence) à Knight (1998)
MENS REA 1. Intentionally/Recklessly creating apprehension of imminent unlawful contact
ASSAULT: AGGRAVATED ASSAULT
S 33 – WOUNDING OR GRIEVOUS BODILY HARM WITH INTENT - Specific intent offence (intoxication is relevant) - Max penalty = 25 years à Standard non-parole of 7 years ACTUS REUS 1. Wounding or GBH GBH is defined as ‘really serious bodily harm’ à R v Perks (1986)
Further GBH definition: S 4 Crimes Act 1900 (NSW)
- The destruction of a foetus - Any permanent or serious disfiguring of the person - Grievous bodily disease Wound à Any injury which breaks through the whole skin (both inner and outer) à Vallance v R
MENS REA 1. Intent to wound or cause GBH S 35 – RECKLESS GRIEVOUS BODILY HARM OR WOUNDING
ACTUS REUS 1. Wounding or GBH
MENS REA 2. Reckless as to the possibility of ABH (makes it easier for the prosecution to prove) S 59 – ASSAULT OCCASIONING ACTUAL BODILY HARM
ACTUS REUS 1. Common assault (battery or psychic assault) 2. Occasioning of actual bodily harm Actual bodily harm has an ordinary meaning – must be more than transient or trifling à R v Donovan (1934)
ABH can be psychiatric (reduced mental state which amounts to ABH) à R v Chan-Fook [1994] Act has to be a substantial and operating cause of the injuries à Zanker v Vartzokas
MENS REA 1. Intentionally/Recklessly apply unlawful contact